REPUBLIC VS. ZAKPALA (C10/019/2024) [2024] GHAHC 359 (19 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON WEDNESDAY THE 19TH DAY OF JUNE, 2024 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURT JUDGE SUIT NO. C10/019/2024 IN THE MATTER OF AN APPLICATION FOR COMMITAL FOR CONTEMPT AND IN THE MATTER OF THE REPUBLIC VS. DR. ZAKPALA DERY EMMANUEL RESPONDENT EX PARTE; 1. KOFI BOAKYE APPLICANTS 2. GAUSU RASHEED JUDGMENT – CONTEMPT OF COURT 1st Applicant absent 2nd Applicant present Respondent present Glena – Lois Boakye – Yiadom holding brief of Nyamekye Samuel Vasco for the Applicants Glynn Nana Agyei with Nicholas Amponsah being led by Joseph Addae Akwaboa for the Respondent 1 APPLICABLE LAW Order 50 rule 1 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) states as follows; 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 for the application (4) Subject to sub rule (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. In the case of the Republic vs. Sito 1, Ex Parte Fodjour [2001 – 2002] Supreme Court of Ghana Law Reports (SCGLR) 322, the Court held that; The essential elements for the offence of contempt of Court are; 1. There must be a judgment or order requiring the contemnor to do or abstain from doing something; 2. It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing; 3. It must be shown that he failed to comply with the terms of judgment or order and that his disobedience is willful. Alridge, Eady and Smith on Contempt, Sweet and Maxwell @ Page 19, states as follows; 2 “Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard. …There cannot be anything of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and to their characters.” INTRODUCTION On 24th November, 2023 the Applicants filed the present application praying the Court to commit the Respondent herein to prison for contempt. The grounds for the application are that the Respondent exhibited conduct intentionally calculated to undermine the administration of justice by deliberately disobeying the orders of the Circuit Court Dormaa Ahenkro dated 21st June, 2017. That the Respondent by disobeying the Court order intentionally and maliciously undermined the administration of justice by bringing it to disrepute. That the conduct of the Respondent is prejudicial to the administration of justice. The Applicant attached the order complained of which states as follows; ”UPON READING the affidavit of Dr. Zakpala Emmanuel of Dormaa Ahenkro, the Plaintiff Applicant herein filed on 30th November, 2016 in support of Motion on Notice for Interlocutory Injunction AND UPON HEARING Joseph Addae Akwaboa Esq. Counsel for the Plaintiff Applicant herein IT IS HEREBY ORDERED THAT interlocutory injunction be placed on the disputed land situate at a place commonly known and called Tweapease on Baabianeha stool land and bounded by the properties of Kofi Boakye, Osei Yeboah, Baabianeha Stool land and the Kofi Badukrom and Tweapease Road to restrain both parties from cultivating the disputed land until the final determination of the case”. It is not disputed that the Respondent had notice of the application because he was the one who filed the application and same was granted on 21st June, 2017. The crux of the 3 Applicants’ claim is that the Respondent went to the land in dispute, cleared a larger portion of it in preparation to plant food and cash crops. That although the Applicants warned the Respondent persistently to desist from cultivating the land, the Respondent failed to listen to the Applicants’ advice and went ahead to clear the land. The Applicants attached exhibits “C”, “D” and “E” to support their evidence showing the land cleared by the Respondent which constitute contempt for which reason the Applicants pray the Court to commit the Respondent to prison for contempt. In a written address filed by Counsel for the Applicants in support of the application, relying on applicable authorities on contempt including the case of the Republic vs. Sito I Ex Parte Fodjour [2001 – 2002] SCGLR 322, Counsel noted that the Applicants personally saw the Respondent on the land with some labourers clearing the land. They further questioned the Respondent on the land with some labourers clearing the land. Counsel noted that the Respondent denied clearing the land in order to escape punishment. According to Counsel, the Respondent had notice of the order but that notwithstanding he went ahead to clear the land to cultivate food crops. Counsel prayed the Court to commit the Respondent to prison. THE RESPONDENT’S DEFENCE In his response to the application, the Respondent denied the Applicants’ claim that he recently went to the land in dispute to clear a larger portion of the land to plant food and cash crops. He denied the Applicants’ claim that they advised him to stop his activities on the land but he persisted. According to the Respondent, he is not aware of any cultivation being undertaken on the disputed land which the parties have been restrained from carrying on any activity. He is not aware of anyone clearing the land with intention to cultivate it and he has not cleared any land to cultivate it. He does not know where the land shown in exhibit “C” is situated since it is not the land in dispute in the case pending before the Circuit Court Dormaa Ahenkro. That the exhibits the Applicants tendered is 4 to throw dust into the eyes of the Court. It is the Applicants who have cultivated plantain around their poultry structure. That exhibit “C” may be someone else’s land. He claimed the motion is frivolous and prayed the Court to strike it out with punitive cost. In his address filed in support of the Respondent’s case, Counsel for Respondent sought to impugn Counsel for Applicants’ application on the ground that it is incompetent. Counsel’s reason is that the Applicants stated the grounds for their application on the face of the motion paper instead of the affidavit in support. According to Counsel, this sins against Order 50 rule 3 of C.I 47 and that same could not be cured under Order 81 of C.I 47, yet Counsel responded to the application and prayed the Court to dismiss it. Counsel cited applicable authorities on contempt including the case of Akele vs. Coffie and Another vs. Okine and Another (Consolidated) [1979] Ghana Law Report (GLR) 84 – 90 which held that in order to establish contempt when it was civil contempt, the standard of proof must be proof beyond reasonable doubt that a contempt of Court had indeed been committed. Counsel argued that in proving their case the Applicants tendered exhibits “B” the order for interlocutory injunction and exhibits “C”, “D” and “E”. Exhibits “D” and “E” show a land with plantain cultivated on it and the Applicants’ poultry structure on it. Exhibit “C” shows only a cleared land and nothing more. The location of the cleared land was not indicated. There is no evidence of the Respondent clearing the land in exhibit “C” and cultivating the plantain in exhibits “D” and “E”. There is no picture of the Respondent in exhibits “C”, “D” and “E” or his agents, assigns, privies etc. Counsel submitted that the Applicants failed to prove that the Respondent disobeyed the order of interlocutory injunction. The Applicants per Counsel failed to prove beyond reasonable doubt that the Respondent is liable for contempt. 5 BY COURT; In the case of Miller vs. Minister of Pensions [1947] 2 All England Report (ALLER) 372 @ 373 -374 Lord Denning L. J stated as follows; “…Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable, the case is proved beyond reasonable doubt…” With reference to the Ex Parte Sito case cited above, the first element is that; there must be a judgment or order requiring the contemnor to do or abstain from doing something. The Applicants established that there is an order of interlocutory injunction dated 21st June, 2017. It is not disputed that the Respondent had notice of the order. In the said order in suit number C1/02/2017 in the Circuit Court Dormaa Ahenkro, the Respondent was restrained together with the Applicants from cultivating a piece of land situate at a place known and called Tweapease on Babianeha Stool Land until final determination of the case. The Applicants further established that it was the Respondent who applied for the Application at the Circuit Court Dormaa Ahenkro. The order was drawn and the Respondent had notice of it. The Respondent therefore knew precisely what he was expected to do or abstain from doing, that is, not to undertake any cultivation on the land in dispute. In fact, the Respondent indicated in paragraph “5” of his affidavit in opposition that; “That I am not aware of any cultivation going on, on the land which both of us have been restrained by the Honourable Court not to cultivate until final determination of the matter”. The Applicants therefore established and the Respondent affirmed that he knew precisely what he was expected to do or abstain from doing per the order dated 21st June, 2017. On 6 the third element that it must be shown that he failed to comply with the terms of the judgment or order and that his disobedience was willful, the Applicants’ case per paragraphs (9) and (10) is as follows; “(9) That as the case is still pending before the Court, the Plaintiff Respondent has recently gone to the land in dispute to clear a larger portion organizing himself to plant food and cash crops thereon despite persistent warning to him. (10) That the Plaintiff Respondent has since failed to listen to my advice to stop his activities on the land hence the present action. Attached and marked exhibits “C”, “D” and “E” are photographs of the land cleared by the Plaintiff Respondent”. Counsel for Applicants’ address on the last page states as follows; “That in respect of this matter the Applicants are saying that they personally saw the Respondent on the land with some labourers clearing the land….” Granted without admitting that the Respondent went to the land, the Applicants did not say when, they said recently. Recently is not definite. The Applicants per their lawyer said they saw the Respondent on the land. No evidence was produced to that effect. No photograph of the Respondent, the labourers or the tools that the labourers were working with on the land were tendered by the Applicants. The Applicants personally seeing the Respondent is strong evidence but that is not enough. They need to establish further evidence with photographs, by calling witnesses, by properly describing the land and its location, a recorded evidence of their interaction with the Respondent on the land in the Respondent’s presence etc. The Applicants attached photographs particularly exhibit ‘C”. Counsel for Respondent noted that; 7 “Your Ladyship, Exhibit “C” only shows a cleared land and nothing more. Your Ladyship there is no indication as to where the cleared land in exhibit “C” is situate, there is no evidence of the Respondent clearing the land in exhibit “C” and cultivating plantain in exhibits “D” and “E””. The Court is of the view that a photograph showing a land that has been cleared per exhibit “C” is not enough. Proof beyond reasonable doubt is not one that requires mathematical calculation, it is proof that should convince the Court that even if there is some amount of doubt that the Respondent disobeyed the Court order, that doubt should be reasonable. From the evidence led by the Applicants, merely saying they saw the Respondent on the land and tendering a photograph showing land that has been cleared is not sufficient to establish proof beyond reasonable doubt. When the Respondent denied the Applicants’ claim, the Applicants should have sought leave of the Court to file supplementary affidavit to give further evidence to convince the Court. This the Applicants failed to do. The Applicants therefore in the Court’s view failed to prove the third and most essential element of the crime that the Respondent disobeyed the order. In the case of Majolagbe vs. Larbi & Others [1959] Ghana Law Report 190 -195 the Court held that; “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true”. Counsel for Respondent raised objection to Counsel for Applicants’ motion by stating the particulars of the motion on the motion paper instead of in the affidavit and prayed the Court to dismiss the motion as incompetent. Counsel however responded to the motion by arguing against it. He therefore took a fresh step and for that matter dispensed with 8 his right to complain about it. Order 81 rule 2 (2) of the High Court (Civil Procedure) Rules, 2004 (C.I 47) provides as follows; No application to set aside any proceeding for irregularity shall be allowed unless it is made within a reasonable time and the party applying has not taken any fresh step after knowledge of the irregularity. It is useful to add that Counsel for Respondent argued that the said process filed by the Applicants could not be cured under Order 81 of C.I 47. It is the Court’s view that since Counsel took a fresh step, he lost his right to challenge the said process. The Court considers the process as an irregularity curable under Order 81 of C.I 47 and therefore not a nullity. CONCLUSION Based on the above considerations and analysis and in the light of the applicable laws cited, the Court is of a maximum conviction that the Applicants failed to establish beyond reasonable doubt that the Respondent disobeyed the order of interlocutory injunction dated 21st June, 2017 from the Dormaa Ahenkro Circuit Court. The Court finds the Respondent not liable to be committed to prison. In the circumstance, the application is hereby dismissed. Counsel for Respondent prayed the Court for cost of GH₵ 50,000.00 and argued that the Respondent, a surgeon endured a lot of trauma during the contempt proceedings, it affected his work, he incurred legal fees and transportation cost in pursuing the matter. According to Counsel, GH₵ 50,000.00 cost is enough to deter the Applicants. The Applicants counterclaimed for GH₵ 2,000.00. After hearing both Counsel, cost of GH₵ 10,000.00 is awarded in favour of the Respondent. (SGD) JUSTICE JOYCE BOAHEN HIGH COURT JUDGE 19TH JUNE 2024 9