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ADINYIRA (MRS), JSC: -
On 31st October 2018,
this Court heard an application
for an order to commit for
contempt of the Court four
persons namely Gloria Afua
Akuffo, who is the Attorney
General, Jean Mensa, the
Electoral Commissioner and her
two Deputy Commissioners, Dr.
Eric Asare Bosompem and Samuel
Tettey; the 1st, 2nd,
3rd and 4th
Respondents respectively.
The Applicants in the contempt
application are Mayor Agbleze,
Destiny Awlimey and Jean- Claude
Koku Amenyaoglo who had on the
12th of September,
2018, issued a Writ No J1/28/
2018 in the Supreme Court
against the Attorney-General and
the Electoral Commission as the
1st and 2nd
Defendants respectively. In that
suit the Plaintiffs are seeking
inter alia a declaration that,
upon a proper interpretation of
Articles 4 (1) (5), (6) and (7)
on the creation of new regions
and Article 42 on the right to
vote, all persons in the subject
regions if they are not already
registered are entitled to be
registered and to vote in a
referendum scheduled for the 27
December 2018.
The Applicants alleged that the
1st and 2nd
Defendants went on to carry out
the registration exercise
despite the pendency of the suit
and so they served them with an
application for an interlocutory
injunction pending the final
determination of the main suit.
They complained that despite the
service of the motion on the
Respondents, they went on to
complete the registration
exercise.
The Plaintiffs accordingly filed
a motion in this court
requesting the following:
“[For] an order committing 1st
, 2nd , 3rd
and 4th respondents
to prison for contempt of court,
and for an order from this
Honourable court against the
respondents to prevent
respondents from taking any
steps or continuing or
persevering in any process that
is directed towards the 27th
December, 2018 referendum which
steps or processes will not only
undermine the main suit and a
pursuant interlocutory
injunction application, but will
amount to a continuing
disrespect to the court upon the
grounds contained in the
accompanying affidavit.
And for any further order or
orders which this Honourable
Court may deem fair and just in
the circumstances.”
ON 31 October, 2018, the Court
upon hearing the parties,
refused the application and
reserved its reasons, which we
are ready to deliver today.
Before we proceed we will like
to make the following
observations.
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 a breach of
the principle of legality which
embraces the rule of law and the
independence of the Judiciary.
One of the main objectives of
the offence of contempt of court
is to protect the dignity of the
court and the justice delivery
machinery. The concept of
contempt of court is to prevent
unjustified interference in the
authority of the court. There
are two types of contempt; (a)
where a party willfully disobeys
an order or judgment of a court,
and (b) 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. See
Oswald on Contempt of Court (3rd
edition), 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;
Republic v Sito I; Ex parte
Fordjour [2001-2002] SCGLR 322,
etc
However applying to the courts
to have someone committed for
contempt is not a trivial matter
as contempt of court whether in
civil or criminal matters
invariably results in a
conviction with imprisonment or
a fine if there is proof beyond
reasonable doubt that the
respondent is guilty of
contempt. Akele v Coffie and
Anor and Akele v Okine and Anor
(Consolidated) [1979] GLR 84;
The Republic v Bank of Ghana and
Others; Ex parte Benjamin
Duffuor, S.C. (Unreported)
J4/34/2018
Submissions by the Applicants
The Applicants claim the writ
was served on the 1st
and 2nd Defendants on
13 September 2018 and alleged in
paragraphs 17 and 18 of their
affidavit in support of their
motion paper that:
17. “ That despite the
service of the writ in the
substantive suit on 1st
and 2nd [Defendants]
…[the] 2nd
respondent held a press briefing
on Friday, 14th of
September, 2018 at which 2nd
respondent said that despite
having been served with
applicants’ writ for
interpretation, the defendant
(EC) will proceed with the
limited voter exercise as
scheduled. This exposed no less
a court than the Supreme Court
to ridicule
18. That the 2nd
defendant acting by 2nd
respondent justified its
disobedience to the apex court
of the land and brought the
administration of justice into
grave disrepute when it
explained that, the writ did not
come with an injunction
application and that the writ
did not have the effect of an
injunction. Same defiance to the
court’s process was widely
reported by the media.”
The Applicants said they reacted
by filling a motion for
interlocutory injunction in this
Court on 18 September 2018 which
was served on the 1st
and 2nd Defendants
the same day; but they
proceeded with the registration
exercise to conclusion. The
Applicants argued that their
conduct constituted contempt and
therefore invited us to commit
the 1st, 2nd
3rd and 4th
Respondents to prison for
contempt.
Thus paragraph 27 of their
affidavit sworn to by the
Applicants in support of their
application reads:
27. “That notwithstanding that
the 1st and 2nd
respondents were served with a
motion seeking to restrain them,
the 1st defendant who
is legal advisor for the
government, the state for that
matter still provided logistical
support in terms of security at
the limited voter registration
centers whereas, 2nd
respondent who acts on day to
day basis for the commission
together with two deputies and
sit permanently at the
Commissions office, went ahead
and caused the limited exercise
in the proposed regions.”
Submissions by the 1st
Respondent
The 1st Respondent
denied committing any act
amounting to contempt of this
Court and said the claims made
against her were as a result of
a misunderstanding of the
constitutional role of the
Attorney-General under article
88 of the Constitution.
Submissions by the 2nd,
3rd and 4th
Respondents
It is only the 2nd Respondent
who filed an affidavit in
opposition to the application.
She denied she was in contempt
as she was not aware that the
Plaintiff had filed a motion for
interlocutory injunction. She
became aware of its existence
after she was served personally
with the motion for contempt and
got a copy of the application
for interlocutory injunction
from the Registry of this Court.
.CONSIDERATION
The case relating to the
Attorney-General
The Deputy Attorney-General as
Counsel for the 1st
Respondent submitted that the
joinder of the Attorney-General
was a misapprehension of the law
and improper. He argued the
Attorney-General was joined on
the basis that she was an
advisor to the Government in
civil cases and that she was
personally not involved in the
action complained of.
We consider the joining of the
Attorney-General in this
application to be highly
improper, unwarranted, vexatious
and frivolous as neither she nor
her office had anything to do
with the registration exercise
for the referendum, which is a
duty solely consigned and
reserved for the Electoral
Commission under the
Constitution. It was for this
reason that we dismissed the
contempt application against the
Attorney- General.
The case relating to the
Electoral Commissioner and her
two Deputy Commissioners
The defence raised by the
chairperson of the EC was that
she was not served with the
application for interlocutory
injunction.
The object of service is to
bring to the notice of an
affected party of the
institution or pendency of court
proceedings. This is trite law.
The common law and our
jurisprudence have firmly
affirmed that a party ought to
be fully appraised of the
proceedings before a court or
tribunal can make any order
against him.
Counsel for the Applicants urged
upon us that there was proof of
service of the application for
interlocutory injunction on a
Clerk at the Electoral
Commission and referred us to
copies of the proof of service
by the bailiff.
Mr. Amenuvor, counsel for the
Commissioners of the Electoral
Commission relied on Order 7
rule 5 (1) of the High Court
(Civil Procedure) Rules 2004, C.
I. 47, to argue that the service
on the clerk was not proper.
Order 7 rule 5 (1) provides:
(1)
“Where service of a document on
a body corporate may, in cases
for which provision is not
otherwise made by an enactment,
be effected by serving it on the
chairman, president or other
head of the body, or on the
managing director, secretary,
treasurer or other similar
officer.”
The categories of persons
mentioned in the said rule, are
responsible persons who might
know the nature and import of
the documents served on them.
Although the Electoral
Commission is not a body
corporate in the strictest
sense, yet by parity of
reasoning, the commission being
a legal entity has to be served
in the mode illustrated in the
above rule.
In this instant case it can be
construed that the purpose of
the application for
interlocutory injunction was to
restrain the Electoral
Commission from continuing with
a registration process that has
started 3 days before the motion
was filed. It is our considered
opinion that in the
circumstances, personal service
on the commissioners was
essential as it was their core
functions which the Plaintiffs
were seeking a court order to
restrain them from exercising.
Service on the clerk was not
good enough. As it turned out
the Chairperson of the Electoral
Commission had no notice of the
application until she was served
with this application to commit
her for contempt; and her
counsel got her a copy from the
Court’s registry. In the
circumstances it cannot be said
that the Electoral Commissioner
and her two deputies knowingly
engaged in acts which tend to
prejudice or interfere with the
fair trial of the case.
It is for these reasons that we
did not find the Commissioners
in contempt of court hence a
dismissal of the application.
The application to commit the
Respondents for contempt is
without merit and therefore
dismissed.
S. O. A. ADINYIRA (MRS.)
(JUSTICE OF THE SUPREME
COURT)
DOTSE, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
DORDZIE (MRS), JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
A.
M. A. DORDZIE (MRS)
(JUSTICE OF THE SUPREME COURT)
AMEGATCHER, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
KOTEY, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ALBERT QUASHIGAH FOR THE
APPLICANTS.
GODFRIED YEBOAH DAME, DEPUTY
ATTORNEY-GENERAL WITH HIM YVONNE
BANNERMAN, SENIOR STATE
ATTORNEY, ENID MARFUL-SAU,
ASSISTANT STATE ATTORNEY FOR THE
1ST RESPONDENT.
JUSTIN AMENUVOR WITH HIM MATTHEW
APPIAH, MIRACLE ATATSI AND HOPE
AGBOADO FOR THE 2ND
RESPONDENT.
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