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Land -
Ownership - Recover possession
of - Say of execution pending
appeal - Interlocutory appeal
- Contempt of court – Whether or
no the defendant was in
contempt of court disrespect
for the orders of the court
given per the judgment of the
trial court – Whether or not the
court is seized with
jurisdiction to deal with the
present application -
HEADNOTES
Joshua Nii
Nmai Addo and Emmanuel Kwatei
Quartey-Papafio the joint
Applicants are head and
representative respectively of
the Nii Kwatei Quarty-Papafio
family. The Applicants issued a
writ in the High Court, Accra,
against one Kwasi Owusu and the
Nii Achia family claiming a
piece of land situated at
.Judgment was entered by the in
favour of the Applicants herein
The Applicants subsequently
filed entry of judgment and same
was served on the losing party
i.e. the Defendants/Judgment
Debtors. The Defendants/Judgment
Debtors filed an appeal against
the decision. This was followed
by an application for stay of
execution pending the hearing of
the appeal. The trial court
refused to grant the stay hence
the application was repeated
before the Court of Appeal which
also refused same
HELD
Applicants
merely filed exhibits JA8A to 8H
which are Police Medical Forms
which establish that the persons
named therein suffered various
physical injuries. Those
exhibits do not prove the venue
or where the incidents occurred.
It is unfortunate that one error
was not enough to have put the
Applicants on their guard as to
the high demands in terms of
proof of this quasi criminal
relief and for which reason they
have to suffer a second lapse. I
can only come to the conclusion
that the Applicant did not meet
the evidential burden on them.
The motion fails and is
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Edusei vs
Attorney General (1996-97) SCGLR
1).
BOOKS
REFERRED TO IN JUDGMENT
Black’s Law
Dictionary 8th
The Oxford
Advanced Learner’s Dictionary of
Current English By A.S. Hornby
(7th Edition)
DELIVERING
THE LEADING JUDGMENT
AKAMBA JSC:-
COUNSEL
NANA OFFEI
DJAN ESQ. FOR THE APPLICANTS.
BABA AVIO
ESQ. FOR THE RESPONDENT.
___________________________________________________________________________________
RULING
_____________________________________________________________________________________________
AKAMBA JSC:-
Joshua Nii Nmai Addo and
Emmanuel Kwatei Quartey-Papafio
the joint Applicants
(hereinafter simply referred to
as Applicants) are head and
representative respectively of
the Nii Kwatei Quarty-Papafio
family.
The
Applicants had on 18th
December 2008 issued a writ in
the High Court, Accra, against
one Kwasi Owusu and the Nii
Achia family in suit No. AL
44/2009 claiming a piece of land
situated at Achiaman, near
Amasaman in the Greater Accra
Region of Ghana. Judgment was
entered by the court presided
over by Justice S.K Asiedu, on 5th
September 2012 in favour of the
Applicants herein.
The
Applicants subsequently filed
entry of judgment and same was
served on the losing party i.e.
the Defendants/Judgment Debtors.
The
Defendants/Judgment Debtors
filed an appeal on 2nd
October 2012 against the
decision. This was followed by
an application for stay of
execution pending the hearing of
the appeal. The trial court on
29th October 2012
refused to grant the stay hence
the application was repeated
before the Court of Appeal which
also refused same on 21st
May 2013.
The
Respondent in this application
is Nii Achia II, Achiaman
Mantse. Following the dismissal
of the application for stay of
execution, the respondent filed
an interlocutory appeal to this
Court on 5th June
2013 against the Court of
Appeal’s refusal to grant the
stay.
In this
application, the Applicants
contend that the Respondent
herein, Nii Achia II, Achiaman
Mantse committed contempt of
this honourable court before
which they have an interlocutory
appeal pending. The
circumstances of their
contention are well deposed in
paragraphs 9 to 22; and 28 to 35
of the affidavit in support of
the motion dated 22/8/14. In
summary, the Applicants recap an
earlier application for contempt
brought before the High Court
arising out of the Respondent’s
disobedience of the trial
court’s orders and also
disrespect of the Court of
Appeal before which latter court
an appeal and an application for
stay of execution filed by his
family were pending.
The High
Court declined to grant the
contempt prayed for. The
Respondent, who refused to learn
a lesson from the failed
application for contempt
continued with his utter
disregard, scorn and contempt
for the authority of the courts
by continuing to enter, encroach
upon, devastate and alter the
face of the Applicants land,
subject of dispute.
The
Applicants further alleged that
following the failure of the
earlier contempt application
based upon respondent’s denials
and in order to verify or
ascertain the true identities of
the encroachers to the land,
some members of Applicants
family were dispatched to the
land on 28 January 2014. They
were also mandated to stop any
encroachers from further
destruction of the land, compel
them to remove any footings,
foundations and structures being
constructed.
On their
return journey home from the
site they were accosted by (8)
eight or more weapon wielding
macho men who, they believe were
sent by the respondent. The men
literally dragged them to the
Respondent’s palace where they
were subjected to beatings with
weapons such axes, on the
Respondent. They suffered
various injuries and lost
various items including monies,
phones, a camera, wrist watches
and land documents. The
Respondent thereafter sent for
the Police from Amasaman and
handed the applicant’s family
members over to them alleging
that they had destroyed the
properties of his grantees on
the land, which land the
Applicants had been given
judgment.
The
Respondent for his part, in a
sixteen (16) paragraph affidavit
denied all the allegations of
disrespect for the orders of the
court given per the judgment of
the trial court (See paragraph 3
of affidavit of 30/9/14)
The
Respondent filed a search
report, exhibit JA 9A which
confirms that Form 6 (under rule
14 (1) of CI 16) has been served
on the Defendant/Appellant, the
Applicant herein. By this state
of affairs, this court is seized
with jurisdiction to deal with
the present application
notwithstanding the 1981
Practice directive par. 6 that
where a cause of matter could be
determined by a superior court
other than the Supreme Court,
the jurisdiction of the lower
court should first be invoked
(See Edusei vs Attorney General
(1996-97) SCGLR 1).
The instant
application seeks an order of
this court to commit the
respondent for contempt of
court. Without doubt, a contempt
application is a quasi-criminal
relief. Section 13 (1) of NRCD
provides that: “13 (1) In any
civil or criminal action the
burden of persuasion as to the
commission by a party of a crime
which is directly in issue
requires proof beyond reasonable
doubt.”
The bone of
contention in this application
is whether or not the Respondent
carried out or caused to be
carried out the act alleged by
the Applicant in defiance of the
orders of the court.
Black’s Law
Dictionary 8th
Edition defines contempt as
“conduct that defies the
authority or dignity of a court
or legislature. Because such
conduct interferes with the
administration of justice, it is
punishable, usually by fine or
imprisonment.” The Oxford
Advanced Learner’s Dictionary of
Current English By A.S. Hornby
(7th Edition) defines
contempt of court as “the crime
of refusing to obey an order
made by a court; not showing
respect for a court or judge.”
The judgment
of trial court per Asiedu J of 5th
September 2012 which has
triggered the present
application states as follows:
“I will
therefore make an order in
favour of the plaintiffs to
recover possession of the
portion of its land trespassed
upon by the 1st
defendant herein. Consequently,
the court will grant an order of
perpetual injunction restraining
the Defendants, their grantees,
licensees, workmen, servants,
successors in title and privies
whatsoever from entering,
remaining on or in any way
encumbering the land or any part
thereof or undertaking any
construction or other work
thereon inconsistent with the
absolute ownership, possession
and or enjoyment of the
Plaintiffs…”
The burden is
on the Applicants to establish
or prove the allegations raised
against the Respondents beyond
reasonable doubt. In the present
application, all the depositions
of fact made by the Applicant
were denied by the respondents.
This therefore enjoins the
applicants to lead further
evidence or point to other
evidence already deposed to that
point to a conclusion in their
favour beyond a reasonable
doubt. The Respondent’s counsel
submitted that the Applicant’s
family members were on their way
home when they were attacked by
a group of people. The Police
moved in to arrest the persons
who were alleged to have gone on
the land for investigations.
They were not attacked on the
land. In view of these obvious
conflicting narrations can it be
said that the Applicants have
proved beyond reasonable doubt
that the Respondent has
committed the offence for which
this application has been
brought? The Applicants have the
burden to prove that acts
alleged against them were
committed by the Respondent in
breach of the orders of the
trial court and also that he
willfully disobeyed the order.
What report was made to the
Police to trigger their
investigation into this matter?
Certainly the applicants could
have led evidence that could
resolve this uncertainty about
the scene of occurrence of the
events, such as providing
extracts from the Police diary
of action. The Applicants merely
filed exhibits JA8A to 8H which
are Police Medical Forms which
establish that the persons named
therein suffered various
physical injuries. Those
exhibits do not prove the venue
or where the incidents occurred.
It is unfortunate that one error
was not enough to have put the
Applicants on their guard as to
the high demands in terms of
proof of this quasi criminal
relief and for which reason they
have to suffer a second lapse. I
can only come to the conclusion
that the Applicant did not meet
the evidential burden on them.
The motion fails and is
dismissed.
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
NANA OFFEI
DJAN ESQ. FOR THE APPLICANTS.
BABA AVIO
ESQ. FOR THE RESPONDENT.
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