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R U L I N G
DOTSE, (JSC):-
By their application before this
Honourable Court, the Applicants
herein, numbering about 28 and
acting per Agyenim-Boateng are
seeking an order to commit the 1st
Respondent, S. K. Boateng and
the 2nd Respondent
Evelyn Akuffo Oduro (Mrs) 2nd
Respondent for contempt of court
and further order the 1st
Respondent or both Respondents
to pay the sum of GH¢392,062.90
into National Investment Bank,
at Kumasi Central Branch or into
court, pending the final hearing
and determination of the
substantive appeal by this
court.
From the affidavit and statement
of case filed by the Applicants,
it is clear that there has been
a long drawn legal tussle
between the Applicants herein,
therein
Plaintiffs/Respondents/Appellants
and the 1st
Respondent herein, therein
Defendant/Appellants/Respondent.
The 2nd Respondent
herein had been attached to the
present contempt application
because of her position as the
Manageress in charge of the
National Investment Bank, Kumasi
Central who is alleged to have
flouted or wilfully disobeyed
the order of this Honourable
court.
FACTS LEADING TO THE APPLICATION
According to the Applicants,
they are registered members of a
company limited by guarantee
called the Kejetia Traders
Association, also known as
Mighty 18. The 1st
Respondent is the Chairman of
the Association.
Sometime in 1993, the Kumasi
Metropolitan Assembly (KMA)
ordered the members of the
Association, who were
legitimately carrying on their
business in Kejetia to quit
their place of business as the
Government of Ghana wanted to
redesign and develop the area.
Consequently, the Association in
collaboration with the KMA
managed to secure a commercial
property belonging to the State
Housing Corporation at North
Suntreso, Kumasi, for the
construction of stores. It was
agreed that the construction
would be pre-financed by members
of the Association who were
interested in acquiring the
stores by paying the sum of Two
Million One Hundred Thousand
cedis each at the time.
For one reason or the other,
the KMA was unable to meet its
part of the bargain to allocate
the stores to the members of the
Association which resulted in
the successful institution of a
suit against the KMA. The KMA
was compelled by an order of
specific performance to allocate
the stores to the paid up
members of the Association whose
names were contained in a list
prepared by the 1st
Respondent, then the Plaintiff
in that matter.
Some members of the Association
who had taken possession of some
of the stores but it was alleged
had not contributed towards its
construction were ejected by the
orders of the court. Feeling
aggrieved by this decision, the
Applicants herein instituted
another suit in the High Court
Kumasi against the Chairman of
the Association. They were
successful in that attempt but
it was overturned on Appeal in
the Court of Appeal.
The Applicants armed with their
victory in the High Court had in
the mean time taken possession
and occupation of twenty-eight
of the forty four stores whilst
the matter was on Appeal.
Not long afterwards, the
Government of Ghana compulsorily
acquired the property on which
the block of stores was situate
to allow for the construction of
the Sunyani-Kumasi road.
The Association was duly
compensated for the acquisition
in the sum of GH¢392,062.90,
which cheque was drawn up in the
name of the Association and by
an order of the High Court
deposited at the Kumasi Central
Branch of the National
Investment Bank, pending the
outcome of the Appeal.
On the 22nd of May
2008, the Court of Appeal gave
judgment in favour of the 1st
Respondent herein who then
proceeded to go into execution
by filing an entry of Judgment.
In response to this, the
Applicants filed a motion for
interim injunction on the 28th
day of May 2008 to restrain the
National Investment Bank from
paying out the money to the
Respondent. The 1st
Respondent filed a further
motion to set aside the
Applicant’s motion for interim
injunction as “being
procedurally incompetent,
unwarranted, intended to
stultify execution processes…”
He also asked for a further
order for leave to go into
execution.
On the 4th day of
June 2008, the High Court in
Kumasi heard the motion and
granted the 1st
Respondent’s application for
leave to go into execution.
From the record, it appears the
Applicants herein filed another
motion for injunction before
another judge in Kumasi on the
29th day of July 2008
but the judge declined to hear
the application as the matter
was now before the Supreme Court
for determination as per a
motion for stay of execution
filed therein on 28 July 2008.
On the 3rd of June,
2008 Applicants herein filed a
motion for stay of execution
pending appeal in the Court of
Appeal. This Application was
dismissed and the Applicants
proceeded to the Supreme Court
to repeat the Application which
as was stated supra, was filed
on 28th July 2008.
In the interim, the Respondents
had begun drawing on the account
from the 6th day of
June 2008.
It is in response to this
conduct that the Applicants have
brought the present application
before this court. It is their
contention that the Respondents
had notice of their pending
motion for stay of exection
Appeal long before all the funds
were withdrawn from the account
and by wilfully disregarding
that fact, they were guilty of
contempt.
The crux of the Applicants case
has been captured in paragraphs
23, 24 and 25 of the affidavit
in support of the contempt
application.
In order to set the records
straight, I will reproduce the
said paragraphs in extenso as
follows:
23 “That on 28th
July, 2008 we caused our
previous Lawyer Kofi Addo Esq.
to file an application before
this Honourable court praying
the same for an order staying
the execution of judgment of the
Court of Appeal dated 22nd
May, 2008 and for a further
Order directing the Manager of
the National Investment Bank,
Kejetia Branch which is also the
same as Kumasi Central Branch,
or any other official of the
said Bank from releasing or
paying the money due as
compensations to the Kejetia
Traders Association for the
demolition of the North Suntreso
Supermarket to the 1st
Respondent pending hearing and
determination of the appeal
filed on 24th May
2008, attached hereto is a copy
of the stay of execution which
is marked 17”
24 “That the 1st
Respondent was duly served with
the said application for stay of
execution among others and he
subsequently filed an affidavit
in opposition to the same.”
25 “That by paragraph 6 of
the 1st Respondent
affidavit in opposition, the 1st
Respondent deposed to the fact
that the compensation was
released to him four days after
the motion for Stay of Execution
was served on him (attached
hereto exhibit AB 18)”
From the above depositions, two
issues stand out clear. These
are:
1. Whether the 1st
Respondent was served with the
motion for Stay of Execution
filed in this court on 28th
July, 2008 by the Applicants
before the 1st
Respondent collected or received
the amount involved from the 2nd
Respondent.
2. That, the 1st
Respondent himself has admitted
in an affidavit that he received
the compensation payments four
(4) days after the motion for
stay of execution was served on
him.
It is interesting to observe
that, the 1st
Respondent in his affidavit in
opposition sufficiently
explained and debunked the
erroneous impression created
that he had admitted in a
previous affidavit that he
received the compensation
payment four (4) days after the
service of the motion for Stay
of Execution filed at the
Supreme court was served on him.
The 1st Respondent
deposed to these facts in
paragraphs 24 and 26 of his
affidavit in opposition as
follows:-
24 “That the deposition in my
affidavit in opposition to the
Applicants application for stay
of execution at the Supreme
Court to the effect that the
compensation was released to us
4 days after the application for
stay of execution at the Supreme
Court which said deposition
forms the basis of this contempt
application was
inadvertent and a
genuine mistake which my
Solicitor convincingly explained
to my Lords when the Applicants
brought the application for stay
of Execution of judgment of the
Court of Appeal somewhere in
October, 2008”
26 “That I attach herewith
a mini bank statement from the
National Investment Bank (N.I.B)
marked same as exhibit “KA7” to
show to my Lords that the
compensation was released to us
long before the Applicants filed
their stay at Court of Appeal.
The court of Appeal gave it’s
judgment on the 22nd
day of May, 2008 and the stay
was filed on the 17th
day of June, 2008 about 25 days
thereafter. And the compensation
was released to us on the 6th
day of June, 2008”.
From the foregoing it means
that, the motion for Stay of
Execution filed in this court on
28th July, 2008 was
further away from the date that
the compensation was released to
the 1st Respondents.
Indeed, there is documentary
evidence to support the 1st
Respondents incisive depositions
and submissions, reference
exhibits AB17 AND KA17 the mini
bank statement from National
Investment Bank, Kumasi Central
Branch.
This shows that, after the
filing of the motion for stay of
execution in this court on 28th
July, 2008, only an amount of
GH¢150.00 was withdrawn by the 1st
Respondent on 30th
July, 2008.
As a matter of fact, all the
major and huge withdrawals were
done between 6th
June, 2008 and 20th
June 2008 when there was no
order of stay of execution
inhibiting or prohibiting the 1st
Respondent from receiving the
said compensation.
By parity of reasoning, there
was also nothing to restrain the
2nd Respondent from
allowing the 1st
Respondent to access and or
withdraw from his account.
Under such circumstances,
DOES THE RESPONDENTS ACT AMOUNT
TO CONTEMPT?
The Applicants have themselves
cited the two cases which deal
exhaustively with the
ingredients of contempt of
court. In the Republic
v High Court Accra; Ex Parte
Laryea Mensah, [1998-99]
SCGLR,360
the court unanimously held that
one could not be punished in the
absence of a wilful breach of
order to do or refrain from
doing some act.
The court speaking through
Bamford-Addo JSC pronounced on
page 368 as follows:
“By definition, a person commits
contempt and may be committed to
prison for wilfully disobeying
an order of court requiring him
to do any act other than the
payment of money or to abstain
from doing some act; and the
order sought to be enforced
should be unambiguous and must
be clearly understood by the
parties concerned. The reason is
that a court will only punish as
contempt, a wilful breach of a
clear court order requiring
obedience to its performance.
Therefore disobedience which is
found not to be wilful cannot be
punished.”
The court in the same case also
relied on Agbleta v The
Republic [1977] 1 GLR 445, CA
per Azu Crabbe CJ;
“It seems to follow from the
authorities that wilful
disobedience of the order of the
court must be established before
a person can be held to be
guilty of contempt… This court
thinks that it is one thing to
find unsatisfactory the
appellant’s explanation of his
conduct, and quite another to
infer wilful defiance from his
conduct.”
Yet again Bamford-Addo JSC
referred to the case of
Kangah v Kyere [1979] GLR 458,
from the head note that;
“to obtain a committal order for
contempt, the applicant must
strictly prove beyond all
reasonable doubt that the
respondents had wilfully
disobeyed and violated the
court’s order… In the absence of
such evidence, the respondents
could not be guilty of
contempt”
The Supreme Court stated the
standard of proof required in
contempt cases in the case of in
Re Effiduase Stool
Affairs (No 2) Republic vrs
Numapau, President of the
National House of Chiefs and
others, Ex-parte Ameyaw II No. 2
{1998 -99} SCGLR 639,
where the court stated as
follows:-
“Since contempt of court was
quasi-criminal and the
punishment for it might include
a fine or imprisonment, the
standard of proof required was
proof beyond reasonable doubt.
An applicant must, therefore,
first make out a prima facie
case of contempt before the
court considers the defences put
upon by the respondents”
It is therefore clear that, just
as in criminal cases, an alleged
contemnor is presumed innocent
until proven guilty so it is
with civil contempt
applications. 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.
The Supreme Court in the case of
Republic vrs. SITO I
Ex-parte Fordjour {2001 – 2002}
SCGLR 322 stated the
following as the essential
elements when dealing with the
offence of contempt:
1. There must be a
Judgement 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 and
3. It must be shown that
he failed to comply with the
terms of the judgment or order
and that the disobedience is
wilful”.
Comparing the facts of the
instant case to the principles
of law enunciated in all the
cases stated supra, it is
apparent that the Applicant has
not met the litmus test required
of him to establish beyond
reasonable doubt the offence of
contempt against the
Respondents.
In the first place, it is quite
clear that the explanation of
the 1st Respondent
that it was a mistake on his
part when he stated that he was
served with the motion for stay
of execution in this court four
(4) clear days before he
received the compensation is
convincing reasonable and
acceptable. This is further
buttressed by the fact that it
is an established practice that
court processes are deemed to
have been served when an Officer
of this court asserts positively
by affidavit of service that he
had on such a date duly served
the Respondent as the case might
be.
In the face of the explanation
of the 1st
Respondent, the Applicants
should have produced sufficient
documentary evidence from the
Registry of the Supreme Court to
attest to the fact that 1st
Respondent had been served four
(days) before he received the
compensation.
Secondly, the mini bank
statement, shows conclusively
the various dates upon which the
1st Respondent made
the withdrawals. As had been
stated supra, apart from the
GH¢150.00 withdrawal by 1st
Respondent on 30th
July, 2008 all the other
withdrawals of this compensation
money had been made long before
the motion for stay of Execution
was filed in the Supreme Court
on 28 July 2008.
In my opinion, the Respondents
have not been proven to have had
any knowledge of the pendency of
the motion for stay of execution
filed in this court on 28th
July 2008 before 1st
Respondent withdrew the
compensation money of
GH¢392,062.90 from 2nd
Respondent’s bank.
In concluding this matter, there
was no judgment, order or
pending application duly served
on the Respondents requesting
them to do or abstain from doing
something which they have
wilfully flouted. This is an
essential ingredient of proof of
contempt. Once this crucial
ingredient is lacking the
application must fail.
Thirdly, under the circumstances
the contemnor does not know what
he is expected to do or abstain
from doing and this has made the
order or service of the process
complained of highly ambiguous.
To hold therefore that the
Respondents are guilty of
contempt would be a travesty of
justice as the entire contempt
proceedings is so nebulous and
admits of no certainty, a key
requirement in proof of
contempt. It will be manifestly
unreliable for a court of law to
entertain and convict upon it.
Finally, the Respondents cannot
be deemed to have wilfully
disobeyed an order, judgment or
a pending process of this court
which they had no knowledge
about.
In the premises, this
application for contempt against
the Respondents is dismissed as
being entirely without any merit
whatsoever.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
I agree
G. T. WOOD (MRS)
(CHIEF JUSTICE)
I agree
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
I agree
ANIN –YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AUGUSTUS ANANE-QUEBAH FOR THE
APPLICANTS
THADDEUS SORY FOR THE 2ND
RESPONDENT
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