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Employment - License agreement -
breach of - Senior Staff rules
and Conditions of service -
Contempt of Court - Whether
appellant the had a valid
subsisting license agreement to
stay in the property - Whether
or not the respondents by
summarily dismissing the
appellant were in contempt of
court - whether or not the
respondents by evicting the
appellant from the apartment had
committed contempt
HEADNOTES
The facts of this case which
admit of little controversy are
as follows; Untill the 7th
March, 2014, the appellant was a
Deputy Manager of the first
respondent Bank hereafter called
the Bank. By virtue of his
employment, and in line with the
conditions of service of senior
staff of the Bank, the appellant
was granted a license to reside
in the Bank’s apartment, On 25th
January 2011, the Bank wrote a
letter to inform all occupants
of the apartment to vacate the
building and relocate to Adenta
and Mataheko. the appellant
refused to relocate on the
ground that he had a valid
subsisting license agreement to
stay in the property. The
respondents, frustrated by the
action of the appellant, took
steps to evict him from the
apartment. The appellant
instituted an action in the High
Court to prevent the respondents
from evicting him. While
the action pended (and it is
still pending), the appellant
applied to the court for an
order of injunction to restrain
the Bank from ejecting him until
the determination of the case.
He sought a further order
restraining the Bank from
calling upon him to appear
before a disciplinary committee
pending the determination of the
said suit. he respondents
forcibly evicted the appellant
from the apartment. The Bank by
a letter summarily dismissed the
appellant from its employment
for “gross misconduct”. The
learned judge after reading the
motion and the supporting
affidavit refused the
application of the appellant,
holding that the respondents
were not in contempt. Aggrieved
by the decision of the court,
the appellant filed an appeal in
the Court of Appeal. The Court
of Appeal found the respondents
guilty of contempt and cautioned
and discharged the respondents.
The appellant’s relief for
reinstatement to his position as
Deputy Manager of the Bank was
however refused.-
HELD :-
After evaluating the evidence on
record and the judgment of the
Court of Appeal, we hold that
Court of Appeal was right in
holding that the act of the Bank
in ejecting the applicant from
the house was not in contempt
but their act of summarily
dismissing the appellant
amounted to contempt of court.
The appellant’s appeal for
enhanced sentence however fails
and the respondents’
cross-appeal also fails and both
are dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution article 125(3)
Interpretation Act, 2009 (Act
792):
CASES REFERRED TO IN JUDGMENT
Bonney v Bonney [1992-1993] GBR
779 SC,
In Re Effiduase Stool Affairs
(No. 2); Republic v Numapau,
President of the National House
of Chiefs and others; Ex parte
Ameyaw II (No. 2) [1998-99]
SCGLR 639
Comet Products UK Ltd v. Hawkex
Plastics Ltd [1971] 1 All E R
1141 at page 1143-1144, CA
Akele v Coffie and Another and
Akele v Okine and Anor
(Consolidated) [1979] GLR 84-90.
Republic v Moffat; Ex parte
Allotey [1971] 2 GLR 391
Republic v Sito I; Ex parte
Fordjour [2001-2002] SCGLR 322.
Republic v High Court Accra; Ex
parte Laryea Mensah [1998/99]
SCGLR 360
Balogun v Edusei (1958) 3 WALR
517,
In re Onny (Contemnor) [1967]
GLR 386
in Heydon's Case [(1584) 3 Co.
Rep. 7a; 76 E.R. 637]
Sussex Peerage Case [(1844)
ll.Co & F 85; 8 E.R. 1034],
Grey v Pearson [(1857) 6 H.L.e.
61; 10 E.R. 1216]
REPUBLIC v NUMAPAU AND OTHERS;
EX PARTE AMEYAW II [1999-2000] 2
GLR 629.
BOOKS REFERRED TO IN JUDGMENT
Oswald on Contempt of Court (3rd
edition)
S. A. Brobbey Law of Chieftaincy
in Ghana, 2008
DELIVERING THE LEADING JUDGMENT
BAFFOE-BONNIE, JSC:-
COUNSEL.
MAJID AMANDI FOR THE
APPLICANT/APPELLANT/APPELLANT.
SAMUEL CUDJOE FOR THE
RESPONDENTS/RESPONDENTS/RESPONDENTS
BAFFOE-BONNIE, JSC:-
This is an appeal by the
applicant/appellant/appellant
hereafter called appellant,
against the judgment of the
Court of Appeal delivered by her
ladyship Mabel M. Agyemang
(Mrs.) JA. There is also a
cross-appeal by the respondents
in this case.
The facts of this case which
admit of little controversy are
as follows; Untill the 7th
March, 2014, the appellant was a
Deputy Manager of the first
respondent Bank hereafter called
the Bank. By virtue of his
employment, and in line with the
conditions of service of senior
staff of the Bank, the appellant
was granted a license to reside
in the Bank’s apartment at
H/No.2 1st Shippi
Close, East Cantonments,
hereafter called the apartment.
On 25th January 2011, the Bank
wrote a letter to inform all
occupants of the apartment to
vacate the building and relocate
to Adenta and Mataheko. The
purpose of the said relocation
was to enable the Bank redevelop
the facility into a specialist
hospital for staff and the
general public.
All staff residing in the
apartment relocated with the
exception of the appellant who
refused to relocate on the
ground that he had a valid
subsisting license agreement to
stay in the property. The
respondents, frustrated by the
action of the appellant, took
steps to evict him from the
apartment. The appellant
instituted an action in the High
Court to prevent the respondents
from evicting him. In that writ
he claimed as follows;
a.
A declaration that the conduct
of defendant is in breach of the
license agreement between it and
the plaintiff
b.
A declaration that the defendant
bank has acted in breach of the
Senior Staff rules and
Conditions of service
c.
A declaration that the sanctions
imposed on the plaintiff is
unlawful, illegal and ultra
vires
d.
An order setting aside the
sanctions imposed on plaintiff
e.
Perpetual injunction restraining
the defendant herein, their
assigns, workers, servants,
independent contractors, or any
person claiming through them
from ejecting plaintiff from his
accommodation contrary to the
license agreement, particularly
pending the final determination
of this suit.
f.
General damages
The Bank entered appearance and
counterclaimed as follows;
a.
A declaration that the
plaintiff’s continued occupation
of Flat 3, Block F, East
Cantonments constitutes trespass
b.
An order for ejectment of
plaintiff from Flat 3, Block F,
East Cantonments
c.
Mesne profit from April, 2013 to
date plaintiff moves from the
flat
d.
Damages for trespass
e.
Special damages of GHC 40,000.00
per day, each day plaintiff has
resided at Flat 3, Block F, East
Cantonments as a trespasser
f.
Cost inclusive of legal fees
While the action pended (and it
is still pending), the appellant
applied to the court for an
order of injunction to restrain
the Bank from ejecting him until
the determination of the case.
He sought a further order
restraining the Bank from
calling upon him to appear
before a disciplinary committee
pending the determination of the
said suit. The High court
granted an interlocutory
injunction to restrain the
respondents from proceeding
against him in any Disciplinary
Committee but his relief to
restrain the respondents from
ejecting him from the apartment
was refused.
On 28th February 2014, the
respondents forcibly evicted the
appellant from the apartment.
The Bank on 7th March 2014, by a
letter summarily dismissed the
appellant from its employment
for “gross misconduct”.
The appellant unhappy with the
conduct of the Bank filed an
application in the High Court
seeking to cite the respondents
for contempt for dismissing him
and also for him to be
reinstated as an employee of the
Bank. He further prayed that he
be reinstated into his official
residence. The learned judge
after reading the motion and the
supporting affidavit refused the
application of the appellant,
holding that the respondents
were not in contempt. Aggrieved
by the decision of the court,
the appellant filed an appeal in
the Court of Appeal. The Court
of Appeal found the respondents
guilty of contempt and cautioned
and discharged the respondents.
The appellant’s relief for
reinstatement to his position as
Deputy Manager of the Bank was
however refused.
The appellant has instituted
this appeal against the decision
of the Court of Appeal on the
following grounds:
a The Court of Appeal erred in
refusing to order the
respondents/ respondents
/respondents to purge themselves
of the contempt by reinstating
the applicant/
appellant/appellant after
finding the conduct of the
respondent/respondents/respondents
unlawful and contemptuous on the
ground that the Suit was not
about wrongful dismissal and
that under a contract of service
each party may disengage at will
or in accordance with its terms…
b.The punishment is woefully
inadequate and based on wrongful
and unjustifiable grounds.
c The Court of Appeal exceeded
its jurisdiction by making
definite prejudicial findings
and pronouncement on Suit No.
INDL 61/13 Titled: Benjamin
Duffour vrs. Bank of Ghana
the accommodation of which
prejudice the case of the
applicant/ appellant/ appellant.
a.
The judgment is against the
weight of evidence.
The respondents have also
cross-appealed against the
decision of the court on the
following ground:
That the Court of Appeal erred
when it convicted Respondents
namely, Bank of Ghana, The
Governor (BOG), Simon P. Kyei,
Yaw Afrifa Mensah, Salifu M.
Abubakari and Caroline Otoo of
contempt as they did not
interfere with the judicial
process nor did they breach any
Court order in any way
whatsoever and or howsoever.
Even though the 4th
ground of appeal was not dealt
with specifically by the
appellant we propose to deal
with the whole appeal under the
omnibus ground of “The judgment
(Ruling in this case) is against
the weight of evidence”. After
all the sum total of the
plaintiffs appeal and the
respondents cross appeal is that
if the honorable Justices Of the
Court of Appeal had evaluated
the evidence on record correctly
they would not have come to the
conclusion they did. The
appellant in his statement of
case argues that the Court of
Appeal rightly found the
respondents guilty of contempt
and convicted them for
proceeding to dismiss the
applicant in flagrant breach of
the court’s order but failed to
properly evaluate the evidence
hence the minimal punishment and
also their refusal to reinstate
him. The respondents, on the
other hand, argue that not a
single one of the Respondents
herein have engaged in any act(s)
which have the effect of
bringing the administration of
justice into disrepute and or
scandalizing the Court. They
further stated that for an act
to constitute contempt it has to
be willful disobedience of an
order of a court.
As has often been stated appeal
is by way of rehearing so it is
our intention to evaluate the
evidence as settled before the
trial High Court, being the
findings of fact thereat made
and come to a definite
conclusion whether such
conclusions and inferences drawn
by the High Court judge were
supportable.
When an appellant complains that
a judgment is against the weight
of evidence, an appellate court,
which is considered to be in the
same position as the trial court
regarding the evidence, is
invited to evaluate same and
come to its own conclusions. The
appellant in such a case assumes
the burden of showing from the
evidence on record the part of
the judgment which is not
supported by the evidence. In
Bonney v Bonney [1992-1993] GBR
779 SC, the court had this
to say:
“Where an appellant contended
that a judgment was against the
weight of evidence, he assumed
the burden of showing from the
evidence that that was in fact
so. The argument that an appeal
is by way of rehearing and
therefore the appellate court
was entitled to make its own
mind on the fact and draw
inferences from them might be
so, but an Appeal Court ought
not under any circumstances
interfere with findings of fact
by the trial judge except where
they are clearly shown to be
wrong, or that the judge did not
take all the circumstances and
evidence into account, or had
misapprehended some evidence or
had drown wrong inferences
without any evidence in support
or had or had not taken proper
advantage of having seen or
heard in support of the
witnesses.”
The contention of the parties
before this court raises two
issues: (1) whether or not the
respondents by summarily
dismissing the appellant were in
contempt of court and (2)
whether or not the respondents
by evicting the appellant from
the apartment had committed
contempt.
To resolve these two issues, we
must first of all understand
what constitutes contempt of
court. Contempt of court
according to Oswald on
Contempt of Court (3rd
edition) may be said to be
constituted by any conduct that
tends to bring the authority and
administration of the law into
disrespect or disregard, or to
interfere with or prejudice
parties, litigants or their
witnesses during the litigation.
The law on contempt in Ghana
seems to be settled. The courts
in Ghana have over the years
dealt with the issue of contempt
of court in several instances.
In the case of In Re
Effiduase Stool Affairs (No. 2);
Republic v Numapau, President of
the National House of Chiefs and
others; Ex parte Ameyaw II (No.
2) [1998-99] SCGLR 639, in
holding 1, the court held as
follows:
“ (1) Per Acquah JSC, Sophia
Akuffo JSC concurring: contempt
of court was constituted by any
act or conduct that tended to
bring the authority and
administration of the law into
disrespect or disregard or to
interfere with, or prejudice
parties, litigants, or their
witnesses in respect of pending
proceedings. And contempt of
court might be classified either
as direct and indirect or civil
and criminal. Direct contempts
were those committed in the
immediate view and presence of
the court (such as insulting
language or acts of violence) or
so near the presence of the
court as to obstruct or
interrupt the due and orderly
course of proceedings. Indirect
or constructive contempts were
those arising from matters not
occurring in or near the
presence of the court, but which
tended to obstruct or defeat the
administration of justice, such
as failure or refusal of a party
to obey a lawful order,
injunction or decree of the
court laying upon him a duty of
action or forbearance. Civil
contempts were those quasi-contempts
consisting in failure to do
something which the party was
ordered by the court to do for
the benefit or advantage of
another party to pending
proceedings, while criminal
contempts were acts done in
respect of the court or its
process or which obstructed the
administration of justice or
tended to bring the court into
disrespect.”
A respondent to a contempt
proceeding may be found guilty
in many ways. The party may be
found guilty of direct contempt
or indirect contempt which may
be proved depending on the facts
of the case in several ways. The
proof of direct contempt seem
not to be as burdensome as proof
of indirect contempt. In most
cases of direct contempt such as
insulting the judge or a party
to a proceeding, or committing
acts of violence in court, the
judge has the advantage of
having a firsthand view of the
act constituting contempt. The
opposite can be said of indirect
contempt where the court will
have to rely on the testimony of
third parties to prove the
offense of contempt.
The standard of proof in
contempt proceeding is well
settled. Contempt of court is a
quasi criminal process which
requires proof beyond reasonable
doubt. This is so whether the
act complained of is criminal
contempt or civil contempt as
was rightly stated in Comet
Products UK Ltd v. Hawkex
Plastics Ltd [1971] 1 All E R
1141 at page 1143-1144, CA.
The court in that case held 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."
The view that contempt of court
requires proof beyond reasonable
doubt was rehashed in the case
of Akele v Coffie and Another
and Akele v Okine and Anor
(Consolidated) [1979] GLR 84-90.
It was held that:
“In order to establish contempt
of court even when it was not
criminal contempt but civil
contempt, there must be proof
beyond reasonable doubt that a
contempt of court had indeed
been committed”
Contempt of court may be
committed intentionally or
unintentionally. It is no
defense to a charge of contempt
for a party to prove that he did
not intend to commit contempt of
court. In Republic v Moffat;
Ex parte Allotey [1971] 2 GLR
391, it was held that it was
no defense for a party facing
attachment for contempt to swear
to an affidavit deposing that he
did not intend to commit
contempt of court. Intentional
contempt may arise in two ways:
·
where a party willfully disobeys
an order or judgment of a court,
and
·
where a party knowing that a
case is sub judice, engages in
an act or omission which tends
to prejudice or interfere with
the fair trial of the case
despite the absence of an order
of the court.
In cases of willful disobedience
of an order or judgment of the
court, the following elements
have to be established:
1.
That there is a judgment or
order requiring the contemnor to
do or abstain from doing
something;
2.
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 his
disobedience is willful.
See the case of Republic v
Sito I; Ex parte Fordjour
[2001-2002] SCGLR 322. In
that case, His lordship T.K.
ADZOE stated as follows:
“The type of contempt charged
against the Appellant involves
willful disobedience to the
judgment or order, or other
process of a Court; it must
import a demand to do or abstain
from doing something. A refusal
to comply with that demand of
the Court is what constitutes
the offence of contempt which
the Courts consider as an
obstruction to the fair
administration of justice and
also as an affront to the
dignity of the Court. The
offence interferes with the
administration of justice
because it in effect denies a
party his right to enjoy the
benefits of the judgment or
order; it is an affront to the
dignity of the Court in this
sense that it is viewed as an
act deliberately contrived to
undermine the authority of, and
respect for, the Court. And the
law treats it as a
quasi-criminal offence to
vindicate the cause of justice.
Some degree of fault or
misconduct must be established
against the contemnor to show
that his disobedience was
willful.”
Also in Republic v High Court
Accra; Ex parte Laryea Mensah
[1998/99] SCGLR 360, the
Supreme Court held that for an
act of a party to amount to
contempt of court, it must be
established that he has been
guilty of willful disobedience
or to have willfully violated a
specific order of a court.
The burden on an applicant in
the case of intentional contempt
(as in the present case) is to
establish all three elements as
stated above in order to prove
his case beyond reasonable
doubt. The applicant must
establish that there is indeed a
judgment or order in force
giving rise to the issue of
contempt. He must then go
further to show the court that
the contemnor had knowledge of
the said order and the duty on
him to do or abstain from doing
a particular act. Lastly the
petitioner must establish that
the contemnor intentionally or
willfully disobeyed the order or
judgment of the court.
The respondents in their
statement of case aver that not
a single one of the Respondents
herein have engaged in any act(s)
which have the effect of
bringing the administration of
justice into disrepute and or
scandalizing the Court. They
further state that for an act to
constitute contempt it has to be
a willful disobedience of an
order of a court. True as their
contention may be, we believe
the respondents miss a very
important aspect of contempt of
court. They fail to consider the
fact that contempt of court may
arise where a party
knowing that a case is sub
judice, engages in an act or
omission which tends to
prejudice or interfere with the
fair trial of the case despite
the absence of an order of the
court.
The judicial power of Ghana, by
article 125(3) of the 1992
Constitution, has been vested in
the Judiciary. This power cannot
be fettered by any person,
agency or organ including the
President and Parliament. Any
conduct that contravenes this
provision is clearly
unconstitutional and as such
null and void. When a court is
seized with jurisdiction to hear
a matter, nothing should be done
to usurp the judicial power that
has been vested in the court by
the Constitution of Ghana. In
effect, the state of affairs
before the court was seized with
the matter must be preserved
until the court delivers its
judgment. This is so whether or
not the court has granted an
order to preserve the status quo
or not. A party to the
proceedings will be in contempt
if he engages in an act,
subsequent to the filing of the
case, which will have the effect
of interfering with the fair
trial of the case or undermine
the administration of justice.
The conduct must be one which
has the effect of prejudging or
prejudicing the case even before
a judgment is given.
S. A. Brobbey in his book the
Law of Chieftaincy in Ghana,
2008, in addressing the
issue of contempt arising in the
absence of an order of the
court, made these comments at
pages 479-480:
“ Judicial power is the
authority given to courts to
decide any dispute referred to
it by disputants. If neither the
President nor Parliament has
authority to take away judicial
power, it is inconceivable that
any individual or group of
individuals can give onto
themselves the power to take it
away under any circumstance. The
party will be considered as
having despised the court and
the judicial power by any
conduct on his part that brings
about the removal of or
reduction in that power. Such
conduct will amount to contempt
of court.”
In Balogun v Edusei (1958) 3
WALR 517, which was cited by S.
A. Brobbey in the aforementioned
book at page 483, one of the
respondents, Mr. Krobo Edusei,
then the Minister of Interior,
issued deportation orders
against four persons alleged to
be Nigerians. On the following
day, the alleged Nigerians filed
writs of habeas corpus for a
declaration that they were
Ghanaians and not liable to be
deported. The High Court ordered
the motion to be served on the
minister and the other two
respondents, the Acting
Commissioner of Police and the
Director of Prisons. The case
was adjourned. On the day the
case was adjourned, the four
were deported from the country.
There was evidence that the
respondents knew of the motion
in court. They were found to be
in contempt of court even though
there was no proof of actual
notice on them and no specific
order that they should not be
deported.
Also, in In re Onny (Contemnor)
[1967] GLR 386 at page 483 of
the same book, the applicant as
the head of the Ghana Society of
Religious Liberals had a dispute
with other members of the
society as to who was entitled
to run a lottery on behalf of
the society. Pending the
determination of the dispute,
the High Court made an interim
order suspending the operation
of the lottery. On behalf of the
Principal Secretary, the
Principal Assistant Secretary
(PAS) wrote a letter suspending
the license of the society and
implying that the applicant had
misappropriated funds belonging
to the society. Counsel for the
applicant applied for attachment
for contempt of the PAS. It was
held that the action of the PAS
amounted to contumeliously
questioning the conduct of the
court. It was aimed at
prejudicing the fair trial of
the substantive case and thus to
interfere intentionally with the
administration of justice. He
was convicted for contempt of
court. The conviction was upheld
on appeal to the Court of Appeal
as digested in (1968) CC 51
In the instant case, the Court
of Appeal held that the
respondents were in contempt of
court because by terminating the
appellant’s employment they made
a mockery of the proceedings of
the court and the order
emanating from the said
proceedings. At page 167 of the
record of appeal the court made
the following findings:
“Yet it seems to us that the
conduct of the respondents was
in utter disregard of the order
of the court, for while they did
not technically disobey the
court’s order because they did
not place the appellant before
any disciplinary committee, they
made mockery of the proceedings
of the court and the order
emanating from the said
proceedings, when they
terminated the employment of the
appellant. The effect of their
conduct was that while the
respondents were well aware of
the order of the court which was
aimed at holding the issues of
discipline in abeyance until the
final determination of the suit,
they, in willful disobedience,
failed to comply therewith…”
What is the order that was made
by the trial High Court? At page
35 of the record of appeal the
said order of the High Court can
be seen as follows:
“(a) That the
Defendant/Respondent herein, its
agents, departments, bodies,
management, workers, servants or
any person acting under its
instructions or orders are
restrained from interfering in
any manner the pendency of this
suit by inviting or compelling
the applicant to appear before
any Disciplinary Committee or
proceed against him in any
disciplinary committee;…”
The Court of Appeal’s
interpretation of the above
order of the court is that the
order was aimed at holding the
issues of discipline in abeyance
until the final determination of
the suit and therefore the
respondents in summarily
dismissing the appellant was in
contempt of court. Does it then
mean that after the High Court
gave the said order, the
respondents were completely
barred from taking any
disciplinary action against the
appellant until the final
determination of the matter
before the High Court? We think
not. Such a literal
interpretation of the order of
the High Court is unreasonable
and will lead to manifest
absurdity.
In construction of all documents
that are brought before the
courts, we ought to be mindful
of these words in the
Interpretation Act, 2009 (Act
792):
“The general rules for the
construction or interpretation
used by the Courts were
formulated by the Judges and not
enacted by Parliament. From the
Mischief Rule enunciated in
Heydon's Case [(1584) 3 Co. Rep.
7a; 76 E.R. 637] to the Literal
Rule enunciated in the Sussex
Peerage Case [(1844) ll.Co & F
85; 8 E.R. 1034], to the Golden
Rule enunciated in Grey v
Pearson [(1857) 6 H.L.e. 61; 10
E.R. 1216] the Courts in the
Commonwealth have now moved to
the Purposive Approach to the
interpretation of legislation
and indeed of all written
instruments. The Judges have
abandoned the strict
constructionist view of
interpretation in favour of the
true purpose of legislation.
The Purposive Approach to
interpretation takes account of
the words of the Act according
to their ordinary meaning as
well as the context in which the
words are used. Reliance is not
placed solely on the linguistic
context, but consideration is
given to the subject-matter, the
scope, the purpose and, to some
extent, the background. Thus
with the Purposive Approach to
the interpretation of
legislation there is no
concentration on language to the
exclusion of the context. The
aim, ultimately, is one of
synthesis.”
What is the purpose of the order
of the court cited above
considering the facts and
circumstances leading to
appellant’s action in the High
Court? From the pleadings of the
parties at the High Court it can
be construed that the purpose of
the injunction was to restrain
the respondents from taking
disciplinary action against the
appellant for his refusal to
relocate from the apartment.
In effect, the Bank, from the
injunction granted by the High
Court, could not in any way
invite the appellant to a
disciplinary committee with the
purpose of punishing him for his
refusal to relocate from the
apartment. However, the said
injunction cannot be said to
have barred the Bank from taking
any other disciplinary action
against the appellant pending
the final determination of the
matter. Such a construction will
be absurd and inconsistent with
the purpose of the injunction
given by the High Court.
If this court is to hold that no
disciplinary action could be
taken against the appellant
until the final determination of
the matter, then assuming the
appellant gives out confidential
information or even burns down
the Bank, then it means that no
disciplinary action can be taken
against him until his case
before the High Court has been
settled. Such an interpretation
would amount to an
“interlocutory immunity” from
all forms of disciplinary
actions in favour of the
appellant. This would clearly be
contrary to law and good
conscience. We therefore hold
that on the true and proper
construction of the orders of
the High Court, the court did
not prevent the Bank from taking
any other disciplinary action
against the appellant in future
other than a disciplinary action
for his refusal to relocate.
The appellant in paragraph 18 of
his affidavit in support of his
motion for contempt averred as
follows:
‘That despite the pendency of
Suit No. INDL/61/13 (Exhibit
“A”), the Injunction Order
(Exhibit “C”) restraining the
Bank of Ghana from inviting or
compelling me to appear before
any disciplinary committee, or
proceed against me in any
disciplinary committee to the
knowledge of the respondents,
the Respondents’ Bank has
proceeded to dismiss me for
failing to vacate my official
residence. See exhibit “K”’
The averment of the appellant
raises the issue of intentional
contempt arising from a willful
disobedience of an order of the
court.
The Court of Appeal was of the
view that the act of the
respondents in summarily
dismissing the appellant without
placing him before the
disciplinary committee was to
make a mockery of the
proceedings of the court and the
order emanating from the said
proceedings. The court therefore
held that the respondents had
willfully disobeyed the court
order and therefore were in
contempt. We think that this
conclusion by the Court of
Appeal is correct. As already
demonstrated, the order of the
High Court did not bar the Bank
from taking any other
disciplinary action against the
appellant but barred the Bank
from taking disciplinary action
against the appellant for his
refusal to relocate. But clearly
the respondents act was geared
towards making a mockery of the
proceedings of the High Court or
the order emanating from the
said proceedings. Exhibit K (at
page 36), which is the letter
summarily dismissing the
appellant, did not state the
reason for the dismissal of the
appellant. So the actual basis
of the dismissal is unknown.
Again, the respondents have said
that the summary dismissal was
unconnected with the matter
before the court but rather it
was due to the applicant’s
misbehavior subsequent to the
courts orders. They said the
applicant violated his
conditions of employment by
engaging in unlawful acts that
entitled the bank to summarily
dismiss him.
This reasoning can be gathered
from the 4th respondent’s
affidavit in opposition to the
motion for contempt. In
paragraph 5 of the said
affidavit (at page 40 of the
record) he stated that the
appellant was dismissed for
engaging in acts which breached
the terms of his conditions of
employment and rules governing
senior staff of the Bank.
However judging from the series
of events that led to the
applicant’s summary dismissal it
will be right to say that the
respondent bank deliberately
disobeyed the court order not to
invite or compel the applicant
to “appear before disciplinary
committee or proceed against him
in any disciplinary committee.”
Though they did not invite or
compel him to appear before a
disciplinary committee, they
disingeniously “summarily
dismissed” him for”gross
misconduct”.
Again judging from the contents
of the letters dated 17th
and 28th February
respectively, the applicant was
dismissed (which was
disciplinary in nature) as a
result of his failure to
relocate from the building in
dispute. Part of the letter of
the 17th February
read
“We have noted with concern the
fact that as at today February
17, 2014, you have failed or
refused to relocate to the newly
allocated house at
MIGHE. Your conduct is a breach
of Article 10(1) of the Senior
Staff Rules and conditions of
service which states that:
“An officer shall conform to and
abide by the rules governing his
service in the bank and shall
observe, comply with and obey
all lawful orders and directives
which from time to time may be
given him by any person or
persons under whose jurisdiction
superintendence or control he
may for the time being be
placed”
Accordingly you are warned to
desist from willfully
refusing to obey legitimate and
reasonable instructions which
constitute gross misconduct
in the bank”(Emphasis added)
The letter dated dated 28th
Feb. 2014 had similar words.
They were both headed “WARNING”.
Seven days after the second
letter, that is, on 7th
March 2014, the applicant
received his letter of
dismissal. The opening sentence
said
“The Board of Directors of
the Bank has summarily dismissed
you from the employment of the
bank with effect from 7th
March 2014 for gross
misconduct.”
Yet the respondent wants this
court to believe that the
applicant’s dismissal was for
something else other than his
refusal to vacate the premises.
We are not convinced by this
argument.
We ought to remind ourselves
that the standard of proof in
contempt cases is proof beyond
reasonable doubt. The burden of
proof is on the appellant in
this case. For the appellant to
succeed in establishing
contempt, he must adduce cogent
and credible evidence to prove
beyond reasonable doubt that his
summary dismissal amounted to a
willful disobedience of a court
order. This, we believe the
appellant has done. The
appellant has demonstrated to
this court with cogent evidence
that the reason for his summary
dismissal was due to his failure
to relocate from the apartment.
The Bank would be in contempt if
the reason for the summary
dismissal was the appellant’s
failure to relocate from the
apartment. The appellant has
been able to establish this. We
will therefore hold that the act
of the Bank in summarily
dismissing the appellant was in
contempt of court.
We will refrain from discussing
the merits of the appellant’s
summary dismissal because that
is not the case before this
court. The case before this
court is for us to determine
whether the act of the
respondents in summarily
dismissing the appellant and
ejecting him from his official
residence amounted to contempt.
The court has a duty to direct
parties in the conduct of their
case; however, it is not the
duty of the court to do a
party’s case for him. However we
believe the right course of
action open to the appellant in
this instance is to institute an
action for wrongful dismissal if
he is aggrieved by the decision
of the Bank. He can only be
reinstated, as the appellant is
asking this court to do, after a
court of competent jurisdiction
has gone into the merits of an
action for wrongful dismissal.
This court cannot reinstate the
appellant since the gravamen of
the matter leading to this
appeal is one of contempt and
not a case of wrongful
dismissal.
Still on the contempt, the next
issue to determine is whether
the respondents in ejecting the
appellant from his official
residence were in contempt of
court. In the instant case,
there is no order on record
which prevents the respondents
from ejecting the appellant from
the apartment. In fact, the
appellant’s application for
interlocutory injunction to
restrain the respondents from
ejecting him from the apartment
was refused. The respondents in
their statement of case aver
that in the absence of an order
of the court restraining them
from ejecting the appellant and
relocating him, they acted well
within their right when they
relocated the appellant. In the
absence of an order of the
court, the case before us is one
of contempt arising from an act
which tends to prejudice or
interfere with the fair trial of
the case. One of the reliefs of
the appellant in his writ read,
“e. Perpetual injunction
restraining the defendant
herein, their assigns, workers,
servants, independent
contractors, or any person
claiming through them from
ejecting plaintiff from his
accommodation contrary to the
license agreement, particularly
pending the final determination
of this suit.”
The claim of the appellant in
paragraph 3 of his statement of
claim at the High Court is that
he is a licensee of the Bank. A
licence can be defined as a
permission given by a person
with an interest in land to
another person to use the land
or part of it which without such
permission would have amounted
to trespass. A licence does not
pass an interest in land nor
does it transfer property in the
land. It can be distinguished
from easement, leases and
tenancies which transfer
proprietary rights. The
plaintiff in the said statement
of claim averred in paragraph 3
that there exist a valid licence
agreement governing his
occupation of the apartment with
specific terms and conditions
which he has complied with but
the respondents refused to
comply. The said licence
agreement is not part of the
record before this court.
Irrespective of the type of
licence being held by the
appellant, the grant of a
perpetual injunction restraining
a licensor from ejecting his
licensee is highly doubtful. An
injunction may be obtained in
cases of a licence coupled with
an interest and a contractual
licence. However to hold that
such an injunction includes a
perpetual injunction in the
absence of any cogent evidence
to aid the court would be
untenable. This however in our
view is a matter for the High
Court to determine on its
merits.
It is our considered opinion
that the Court of appeal got it
wrong when it found the
respondents to be in contempt
for taking steps to eject the
applicant. After all the
applicant’s application to have
the court restrain the
respondents from ejecting him
had been specifically refused.
Having been found in contempt
for summarily dismissing
applicant, the cross appeal
fails..
The second ground of appeal by
the appellant was that having
found the respondent guilty of
contempt, the punishment of
“cautioned and discharged was
too lenient in the peculiar
circumstances of this case and
were based on wrongful and
unjustifiable grounds.
To address this ground of appeal
we will just refer to the case
of REPUBLIC v NUMAPAU AND
OTHERS; EX PARTE AMEYAW II
[1999-2000] 2 GLR 629. In
holding 3, the court held as
follows:
“In contempt proceedings of the
genre that came before the court
in the instant case, the
substantial interest at stake
was the dignity of the courts
and the integrity of the
administration of justice; and
it was consequently a public
one. Hence, once the court made
the determination that the
conduct of the respondents did
not constitute contempt, the
interest of the public and the
administration of justice had
been adequately served, and the
role of the applicant as a
faithful public servant, for the
purposes of the protection of
the judicial process, ceased.
For the applicant to proceed
further to apply for review was
to personalise the objectives of
the contempt of court process.
One of the main objectives of
the offence of contempt of court
is to protect the dignity of the
court. The courts have been set
up to ensure peaceful settlement
of disputes and for the
maintenance of law and order. It
is in the general interest of
members of the community that
the authority vested in the
courts to protect them is not
trampled upon. Any act which
therefore seeks to emasculate
the authority of the courts
should not be countenanced. The
members of the community must at
all times have confidence and
hope in the authority of the
courts to deliver justice. The
concept of contempt of court is
to prevent unjustified
interference in the authority of
the court. It is also designed
to prevent any act which seeks
to damage the dignity of the
court. Contempt of court is not
there to protect the dignity of
any one individual person but
the overall dignity of the
justice delivery machinery.
The duty to protect the dignity
of the court is not vested in
judges alone. Where contempt is
ex facie curia, i.e. contempt
committed outside the court, it
is duty of litigants and in some
cases the Attorney General to
bring proceedings to commit the
contemnor for contempt. However,
litigants in such cases should
be mindful not to assume that
the essence of the contempt
proceedings is to protect their
dignity or for their personal
satisfaction. The appellant in
accordance with his public duty
started the contempt proceedings
in the High Court. His role to
protect the dignity of the court
ceased once the Court of Appeal
found the respondents guilty and
convicted them for contempt. The
appellant by appealing to this
court for an enhanced punishment
seems to have personalized the
contempt application. This court
cannot grant the personal
satisfaction the appellant is
seeking in this case. His relief
for an enhanced punishment is
therefore refused.
To conclude, we will like to end
with what we quoted from
Bonney v Bonney (supra):
“Where an appellant contended
that a judgment was against the
weight of evidence, he assumed
the burden of showing from the
evidence that that was in fact
so. The argument that an appeal
is by way of rehearing and
therefore the appellate court
was entitled to make its own
mind on the fact and draw
inferences from them might be
so, but an Appeal Court ought
not under any circumstances
interfere with findings of fact
by the trial judge except where
they clearly shown to be wrong,
or that the judge did not take
all the circumstances and
evidence into account, or had
misapprehended some evidence or
had drown wrong inferences
without any evidence in support
or had or had not taken proper
advantage of having seen or
heard in support the witnesses.”
After evaluating the evidence on
record and the judgment of the
Court of Appeal, we hold that
Court of Appeal was right in
holding that the act of the Bank
in ejecting the applicant from
the house was not in contempt
but their act of summarily
dismissing the appellant
amounted to contempt of court.
The appellant’s appeal for
enhanced sentence however fails
and the respondents’
cross-appeal also fails and both
are dismissed.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
S. O. A.
ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
J. V. M.
DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL
MAJID AMANDI FOR THE
APPLICANT/APPELLANT/APPELLANT.
SAMUEL CUDJOE FOR THE
RESPONDENTS/RESPONDENTS/RESPONDENTS. |
