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Contempt of court – Court order
– Disobedience - Effect – Court
may not entertain contemnor’s
application in the action until
contempt purged.
During the trial in the High
Court the court restrained the
defendant from developing the
land but he defied the order.
The trial judge therefore held
in his judgment that the Land
Development (Protection of
Purchasers) Act 1960 (Act 2) did
not avail the defendant and
restrained him by an order of
perpetual injunction from the
disputed land. The defendant
hurriedly completed the house,
moved in, appealed and applied
for stay of execution of the
judgment, which the court
refused. On a repeated
application in the Court of
Appeal,
Held,
the defendant should have purged
his contempt before he would be
heard. He had shown no respect
for court orders and it would
not be proper for the court to
exercise its discretion in his
favour. The equitable maxim “he
who comes to equity must come
with clean hands” must apply.
Besides, the application had no
merit. Ababio v Gyeabour III
27 June 1991, SC, Hadkinson v
Hadkinson [1952] All ER 567,
Seatec Ltd v Penton Hook
Farms Ltd [1987-88] 1 GLR
51, CA referred to.
Cases referred to:
Ababio v Gyeabour III,
27 June 1991, CA unreported.
Hadkinson v Hadkinson
[1952] All ER 567, [1952] P 285,
[1952] 2 TLR 416, CA.
Seatec Ltd v Penton Hook Farms
Ltd
[1987-88] 1 GLR 51, CA.
APPLICATION to the Court of
Appeal for stay of execution
pending appeal against the
judgment of the High Court.
ADJABENG JA.
In this application, the
defendant-appellant-applicant
prays this court to order the
stay of the execution of the
judgment given by the High
Court, Accra in favour of the
2nd
plaintiff-respondent-respondent
pending the determination of an
appeal lodged against the said
judgment by the applicant
herein.
The judgment in question, which
was delivered on 11 May 1993,
ordered as follows:
“I order that the defendant was
reckless in erecting the
building in question and ought
to give up possession to the
plaintiff. I grant the plaintiff
damages of ¢50,000 for trespass
on his land by the defendant for
putting up the building on his
land. I grant perpetual
injunction against the
defendant, and award the
plaintiff costs of ¢100,000.”
Dissatisfied with this judgment,
the defendant-applicant appealed
to this court. Among the grounds
of appeal filed on behalf of the
defendant-applicant are the
following:
“(b) The learned trial judge
erred in law by ignoring the
defendant-appellant’s title deed
completely in evaluating the
evidence before the court.
(c) The learned trial judge
erred in law by failing to take
evidence of the surveyor
appointed by the court to draw a
plan of the disputed land and to
make superimposition…
(d) The learned trail judge
erred in law in not upholding
the submission as to the fact of
capacity of the 1st plaintiff.”
It must be mentioned that during
the trial at the High Court, an
order of interim injunction was
in operation against the
continued development of the
land in dispute. It is clear
that the defendant-applicant was
not faithful in the observation
of this order. The trial judge
in his judgment commented on
this and stated that the
applicant herein “erected the
building fully conscious of the
risks he was taking.” And
because of his conduct the trial
judge ruled that the Land
Development (Protection of
Purchasers) Act 1960 (Act 2)
would not avail the
defendant-applicant.
Yet the defendant-applicant
would not learn his lesson. Even
though the trial court gave
judgment against him and made an
order of perpetual injunction
restraining him from interfering
with the land in dispute, he
showed no respect for the order.
After the judgment, he hurriedly
completed the house and moved
into it with his family. It is
not surprising, therefore, that
when the applicant applied to
the trial court for stay of
execution of the judgment, the
court flatly refused to grant
it. Among other things, the
court said:
“The defendant-applicant is
continuing to develop the land
even though he has been told not
to. He who comes to equity must
show clean hands.”
Now, the defendant-applicant,
still in occupation of the land
in dispute in utter contempt of
the order of perpetual
injunction, comes to this court
and prays us to use our
discretionary powers to grant
him stay of execution of the
judgment and thus, more or less
ratify his contemptuous stay on
the land in dispute. Is it
proper for us to do so? It would
seem that the proper course to
take was that the
defendant-applicant should have
purged his contempt even before
he could be heard on his
application before us. In
Ababio v Gyeabour III 27
June 1991, unreported, this
court, on a preliminary
objection raised by the
plaintiff that the defendants
were in contempt of the order of
the trial court by leasing
portions of the land in dispute
and should therefore not be
heard on the appeal ordered the
defendants-appellants to purge
their contempt before they could
proceed with their appeal. See
also Hadkinson v Hadkinson
[1952] All ER 567. In the
present application, we think
that since the
defendant-applicant has shown
that he has no respect for court
orders it would not be proper
for us to exercise our
discretion in his favour. We
think that the equitable maxim:
“he who comes to equity must
come with clean hands” must be
applied here.
Quite apart from the foregoing,
we think that the
defendant-applicant has failed
to satisfy us on the merits of
his application. We think that
the legal points raised on his
behalf were based on the wrong
facts. For example, the
contention of the applicant’s
counsel that the trial judge
failed to call the surveyor
appointed by the court to give
evidence cannot be true as from
the evidence before us, it is
clear that the trial court did
not appoint a surveyor. Also, a
careful reading of the judgment
of the trial court does not lend
support to the contention of the
applicant’s counsel that the
trial judge completely ignored
the defendant’s title deed in
his evaluation of the evidence
before him.
The trial judge said in the
judgment that “the defendant has
no document to show in support
of his title.” This statement,
we think, can only mean, taking
the judgment as a whole, that
the defendant-applicant did not
have a valid document to support
his title or to show his root of
title. Indeed, this seems clear
from the judgment when the trial
judge quoted from an earlier
decision of the circuit court in
a criminal charge preferred by
the applicant against one of the
plaintiffs in respect of the
land in dispute. The circuit
court pronounced therein against
the defendant-applicant as
follows:
“It is my view that PW1 [meaning
the defendant] was so careless
in not taking reasonable steps
to protect his interest before
purchasing the land. It can
therefore be said that his
grantors had no title and so he
was developing the land with
speed in order to steal the
show.”
In any case, there was an
admission by the applicant's
counsel that the respondent’s
title deed was prior to that of
the defendant-applicant.
Lastly and most importantly, it
seems to us that the contention
by the applicant’s counsel that
there was insufficient evidence
to prove the capacity of the 1st
plaintiff who sued as the
executor of the will of the
owner of the land in dispute is
of no legal consequence. This is
so because it is clear from the
judgment of the trail court that
the land was leased to the 2nd
plaintiff-respondent herein by
the owner of the land who was
deceased at the time of the
trial and not by the executor of
the said deceased’s will, the
1st plaintiff, as falsely
claimed by the
defendant-applicant. In the
circumstances, and without going
into details because of the
pendency of the appeal which is
yet to be determined, we are
satisfied that the applicant has
failed to show any special
circumstance that would enable
us to order the stay of
execution of the judgment given
in favour of the 2nd
plaintiff-respondent. See
Seatec Ltd v Penton Hook Farms
Ltd [1987-88] 1 GLR 51, CA.
In conclusion, therefore, we
think application should be
refused. We dismiss it.
Application dismissed
S Kwami Tetteh, Legal
Practitioner |
