Contempt of Court-Reasonable
mistake in disobeying order.
The
respondents (plaintiffs below)
sued the appellant for a
declaration that they were
entitled to possession of
certain lands and obtained
judgment, which was affirmed on
appeal on 3rcl February, 1950;
and the respondents obtained an
order on 23rd February, 1950,
for delivery of possession, The
appellant obtained conditional
leave to appeal to the Privy
Council on 27th February, 1950,
and ·final leave on 22nd June,
1950, on which day he withdrew
his application for stay of
execution upon Counsel for the
respondents stating" writ of
possession partially executed,
prepared to give undertaking
that respondents will not take
possession of any further
portions of the land",
Admittedly on 22nd June, 1950,
the appellant and others by him
represented were still in
occupation of the land in
dispute,
This land was
wholly embraced in a Writ of
Possession executed in
appellant's presence on 4th
March, 1950 (in between
conditional and final leave).
The respondents filed a motion
in September, 1950, for
appellant to show cause why he
should not be committed for
contempt, and the Court ordered
him to pay a fine and costs and
to obey the order for delivery
of possession, The appellant
appealed against it.
Held:
Proceedings for contempt affect
the liberty of the subject and
are strictissimi juris,
Although the writ of possession
had been executed and the
respondents had technically
taken legal possession of the
land, the appellant and those he
represented were still in actual
possession at the time of his
obtaining final leave to appeal
to the Privy Council, and he was
reasonably entitled to
understand the undertaking of
respondents' Counsel as a
promise to take' no further
steps until the decision of the
Privy Council became known,
Appeal from
the Supreme Court by the
defendant: No. 20/51. F. A
Woonor-Williams for the
Appellant,
R. S, Blay
for the Respondents,
The
following judgment was
delivered:
Foster-Sutton, p, This is an
appeal from a decision of
Ragnar-Hyne, J., by which he
held that the appellant, Kwesi
Enimil, by remaining in
possession of certain land,
commonly known as the Bortogina
lands, after a Writ of
Possession had, on the 4th
March, 1950, been executed in
respect of such land, was guilty
of contempt of Court, The
appellant was fined £50, ordered
to pay 25 guineas costs and
directed to obey the Order of
the Court, dated 23rd February,
1950, by which he was directed
to deliver up possession of the
land in question, to the present
respondents, ,
The Writ of
Possession in this case was
obtained by the respondents as a
result of their succeeding in
application brought by them
against the 'appellant in which
they claimed, in effect, for a
declaration that they were
entitled to possession, as
against him, of the Bortogina
lands, The judgment in that suit
was delivered on the 24th April,
1948, and it was affirmed, on
appeal, by this Court on the 3rd
February, 1950. The
appellant obtained conditional.
leave to appeal to the Judicial
Committee of the Privy Council
on the 27th February, 1950, and
final leave w~ granted on the
22ml June, 1950.
During the
hearing of the application for
final leave an application by
the appellant for a stay of
execution was also mentioned and
upon Mr. Larbi, on behalf of the
respondents, stating that he was
prepared to give an undertaking
that the respondents would not
take possession of any further
portion of the land, Mr.
Williams, for the appellant,
stated that he would accept the
undertaking and withdraw the
application for a stay of
execution ..
Before us it
was admitted that the appellant
and the other persons he
represented were still in
occupation of the land in
dispute when final leave to
appeal was granted on the 22nd
June, 1950, and that the
description in the· Writ of
Possession, executed on 4th
March, 1950, embraced the whole
area of such land ..
The motion
calling upon the appellant to
show cause why he should not be
committed for contempt was filed
on 2nd September, 1950. The
hearing took place on various
dates between the 26th October,
1950 and 1st February, 1951.
and, as I have already
indicated, the learned trial
Judge delivered judgment
on 3rd February, 1951.
In the Court
below the appellant's case was
conducted on the footing that he
was not at Bortogina on the 4th
.March, 1950, when it was
alleged that the Writ of
Possession was executed, and I
am of the opinion that this
dispute obscured the real issue
which the Court had to
determine. The evidence as to
his being present was
overwhelming and the learned
trial Judge so found.
A motion to
show cause why a person should
not be committed for contempt of
Court is an application
affecting the liberty of the
subject and is always regarded
by the Courts as a matter
strictissimi juris.
Where an
alleged contempt arises from the
breach of an order made in
favour of a party, as is the
case here, it is a good answer
if it can be shown that the
party complaining of the
contempt has waived it, although
such a defence would not, of
course, avail a person charged
with criminal contempt.
In this case
it seems to me necessary that we
should carefully consider the
undertaking given by Me Larbi
upon the hearing of the
appellant's application. for
final leave to appeal to the
Judicial Committee, resulting,
as it did, in Mr. Williams
withdrawing his application for
a stay of execution.
While it is
true that Mr. Larbi said Writ of
Possession has 'been partially
executed, prepared to give
undertaking that respondents
will not take possession of any
further portions of the land ",
it is also the case that the
Writ of Possession included the
whole area of the land in
dispute and the appellant and
the people he represented were
still in occupation of it. That
being so, although technically
the respondents had taken legal
possession of the land, they
were not in occupation of any
of it, and I am of the opinion
that the appellant was entitled
to assume that the respondent
did not intend to take
possession in fact. In other
words that the respondents were
prepared to maintain the
status quo until the result
of the appeal to the Judicial
Committee became known. The fact
that the respondent apparently
had no such intention docs not,
I think, affect the issue before
us. It is sufficient if a
reasonable man might have been
misled.
It is true
that the writ of Possession was
executed on the 4th March, 1950,
and that the appellant ought to
have vacated the land forthwith,
but he and the others he
represents had lived on the land
in dispute over a long period of
years and it would, in my view
be right to allow' them a
reasonable period in which to
vacate the land before treating
him as being in contempt.
Moreover, he had obtained
conditional leave to appeal to
the Judicial Committee five days
before the Bailiff went on the
land and read the Writ of
Possession" There is the further
fact that the appellant obtained
final leave to ap0tal to the
Judicial Committee on 22nd June,
1950, and the respondents,
through their Counsel, gave an
undertaking which, in my
opinion, could reasonably be
construed as a promise to take
no further steps until the
Judicial Committee's decision
was made known.
In all the
circumstances, including the
fact that the appellant has
repeatedly stated, both
personally and through his
Counsel, that he had no
intention of defying the order
of the Court, I am unable to
agree with the conclusion to
which the learned trial Judge
came.
It
follows that I would allow this
appeal, direct that the fine of
£50 be repaid to the appellant
by the Treasury, and order the
respondents to repay to the
appellant the sum of twenty-five
guineas paid by the latter to
the former in respect of the
costs in the Court below. This
will result in both sides
bearing their own costs in the
Court below, but in the
circumstances I think that
equitable.
The costs of
the appeal will be fixed at £31
13s. O=0d., to be paid by the
respondents to the appellant.
During the
course of the arguments before
us, we were informed that the
parties have now reached- an
amicable settlement of their
differences. It is not,
therefore, necessary for us to
make any other consequential
order.
Coussey,
J. I concur. Korsah, J.
I concur.
Appeal
allowed: order set aside.
