Boateng and Others Vrs Boateng (J8/8/2009) [2009] GHASC 10 (04 March 2009);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – GHANA
------------------------------------------------
CORAM: WOOD (MRS), C J (PRESIDING)
BROBBEY, J.S.C
DOTSE, J.S.C
ANIN YEBOAH, J.S.C
BAFFOE-BONNIE, J.S.C
CIVIL MOTION
NO. J8/8/2009
4TH MARCH, 2009
AGYENIM BOATENG & 27 ORS - PLAINTIFFS/ RESPONDENTS
/APPELLANTS/APPLICANTS
VRS
S. K. BOATENG - DEFENDANT /APPELLANT
/RESPONDENT/RESPONDENT
AND
IN THE MATTER OF
THE REPUBLIC
VRS
- S. K. BOATENG
- EVELYN AKUFFO ODURO (MRS) - RESPONDENTS
EX-PARTE: AGYENIM BOATENG & ORS - APPLICANTS
_____________________________________________________
R U L I N G
DOTSE, (JSC):-
By their application before this Honourable Court, the Applicants herein, numbering about 28 and acting per Agyenim-Boateng are seeking an order to commit the 1st Respondent, S. K. Boateng and the 2nd Respondent Evelyn Akuffo Oduro (Mrs) 2nd Respondent for contempt of court and further order the 1st Respondent or both Respondents to pay the sum of GH¢392,062.90 into National Investment Bank, at Kumasi Central Branch or into court, pending the final hearing and determination of the substantive appeal by this court.
From the affidavit and statement of case filed by the Applicants, it is clear that there has been a long drawn legal tussle between the Applicants herein, therein Plaintiffs/Respondents/Appellants and the 1st Respondent herein, therein Defendant/Appellants/Respondent.
The 2nd Respondent herein had been attached to the present contempt application because of her position as the Manageress in charge of the National Investment Bank, Kumasi Central who is alleged to have flouted or wilfully disobeyed the order of this Honourable court.
FACTS LEADING TO THE APPLICATION
According to the Applicants, they are registered members of a company limited by guarantee called the Kejetia Traders Association, also known as Mighty 18. The 1st Respondent is the Chairman of the Association.
Sometime in 1993, the Kumasi Metropolitan Assembly (KMA) ordered the members of the Association, who were legitimately carrying on their business in Kejetia to quit their place of business as the Government of Ghana wanted to redesign and develop the area.
Consequently, the Association in collaboration with the KMA managed to secure a commercial property belonging to the State Housing Corporation at North Suntreso, Kumasi, for the construction of stores. It was agreed that the construction would be pre-financed by members of the Association who were interested in acquiring the stores by paying the sum of Two Million One Hundred Thousand cedis each at the time.
For one reason or the other, the KMA was unable to meet its part of the bargain to allocate the stores to the members of the Association which resulted in the successful institution of a suit against the KMA. The KMA was compelled by an order of specific performance to allocate the stores to the paid up members of the Association whose names were contained in a list prepared by the 1st Respondent, then the Plaintiff in that matter.
Some members of the Association who had taken possession of some of the stores but it was alleged had not contributed towards its construction were ejected by the orders of the court. Feeling aggrieved by this decision, the Applicants herein instituted another suit in the High Court Kumasi against the Chairman of the Association. They were successful in that attempt but it was overturned on Appeal in the Court of Appeal.
The Applicants armed with their victory in the High Court had in the mean time taken possession and occupation of twenty-eight of the forty four stores whilst the matter was on Appeal.
Not long afterwards, the Government of Ghana compulsorily acquired the property on which the block of stores was situate to allow for the construction of the Sunyani-Kumasi road.
The Association was duly compensated for the acquisition in the sum of GH¢392,062.90, which cheque was drawn up in the name of the Association and by an order of the High Court deposited at the Kumasi Central Branch of the National Investment Bank, pending the outcome of the Appeal.
On the 22nd of May 2008, the Court of Appeal gave judgment in favour of the 1st Respondent herein who then proceeded to go into execution by filing an entry of Judgment.
In response to this, the Applicants filed a motion for interim injunction on the 28th day of May 2008 to restrain the National Investment Bank from paying out the money to the Respondent. The 1st Respondent filed a further motion to set aside the Applicant’s motion for interim injunction as “being procedurally incompetent, unwarranted, intended to stultify execution processes…” He also asked for a further order for leave to go into execution.
On the 4th day of June 2008, the High Court in Kumasi heard the motion and granted the 1st Respondent’s application for leave to go into execution.
From the record, it appears the Applicants herein filed another motion for injunction before another judge in Kumasi on the 29th day of July 2008 but the judge declined to hear the application as the matter was now before the Supreme Court for determination as per a motion for stay of execution filed therein on 28 July 2008.
On the 3rd of June, 2008 Applicants herein filed a motion for stay of execution pending appeal in the Court of Appeal. This Application was dismissed and the Applicants proceeded to the Supreme Court to repeat the Application which as was stated supra, was filed on 28th July 2008.
In the interim, the Respondents had begun drawing on the account from the 6th day of June 2008.
It is in response to this conduct that the Applicants have brought the present application before this court. It is their contention that the Respondents had notice of their pending motion for stay of exection Appeal long before all the funds were withdrawn from the account and by wilfully disregarding that fact, they were guilty of contempt.
The crux of the Applicants case has been captured in paragraphs 23, 24 and 25 of the affidavit in support of the contempt application.
In order to set the records straight, I will reproduce the said paragraphs in extenso as follows:
23 “That on 28th July, 2008 we caused our previous Lawyer Kofi Addo Esq. to file an application before this Honourable court praying the same for an order staying the execution of judgment of the Court of Appeal dated 22nd May, 2008 and for a further Order directing the Manager of the National Investment Bank, Kejetia Branch which is also the same as Kumasi Central Branch, or any other official of the said Bank from releasing or paying the money due as compensations to the Kejetia Traders Association for the demolition of the North Suntreso Supermarket to the 1st Respondent pending hearing and determination of the appeal filed on 24th May 2008, attached hereto is a copy of the stay of execution which is marked 17”
24 “That the 1st Respondent was duly served with the said application for stay of execution among others and he subsequently filed an affidavit in opposition to the same.”
25 “That by paragraph 6 of the 1st Respondent affidavit in opposition, the 1st Respondent deposed to the fact that the compensation was released to him four days after the motion for Stay of Execution was served on him (attached hereto exhibit AB 18)”
From the above depositions, two issues stand out clear. These are:
1. Whether the 1st Respondent was served with the motion for Stay of Execution filed in this court on 28th July, 2008 by the Applicants before the 1st Respondent collected or received the amount involved from the 2nd Respondent.
2. That, the 1st Respondent himself has admitted in an affidavit that he received the compensation payments four (4) days after the motion for stay of execution was served on him.
It is interesting to observe that, the 1st Respondent in his affidavit in opposition sufficiently explained and debunked the erroneous impression created that he had admitted in a previous affidavit that he received the compensation payment four (4) days after the service of the motion for Stay of Execution filed at the Supreme court was served on him. The 1st Respondent deposed to these facts in paragraphs 24 and 26 of his affidavit in opposition as follows:-
24 “That the deposition in my affidavit in opposition to the Applicants application for stay of execution at the Supreme Court to the effect that the compensation was released to us 4 days after the application for stay of execution at the Supreme Court which said deposition forms the basis of this contempt application was inadvertent and a genuine mistake which my Solicitor convincingly explained to my Lords when the Applicants brought the application for stay of Execution of judgment of the Court of Appeal somewhere in October, 2008”
26 “That I attach herewith a mini bank statement from the National Investment Bank (N.I.B) marked same as exhibit “KA7” to show to my Lords that the compensation was released to us long before the Applicants filed their stay at Court of Appeal. The court of Appeal gave it’s judgment on the 22nd day of May, 2008 and the stay was filed on the 17th day of June, 2008 about 25 days thereafter. And the compensation was released to us on the 6th day of June, 2008”.
From the foregoing it means that, the motion for Stay of Execution filed in this court on 28th July, 2008 was further away from the date that the compensation was released to the 1st Respondents.
Indeed, there is documentary evidence to support the 1st Respondents incisive depositions and submissions, reference exhibits AB17 AND KA17 the mini bank statement from National Investment Bank, Kumasi Central Branch.
This shows that, after the filing of the motion for stay of execution in this court on 28th July, 2008, only an amount of GH¢150.00 was withdrawn by the 1st Respondent on 30th July, 2008.
As a matter of fact, all the major and huge withdrawals were done between 6th June, 2008 and 20th June 2008 when there was no order of stay of execution inhibiting or prohibiting the 1st Respondent from receiving the said compensation.
By parity of reasoning, there was also nothing to restrain the 2nd Respondent from allowing the 1st Respondent to access and or withdraw from his account.
Under such circumstances, DOES THE RESPONDENTS ACT AMOUNT TO CONTEMPT?
The Applicants have themselves cited the two cases which deal exhaustively with the ingredients of contempt of court. In the Republic v High Court Accra; Ex Parte Laryea Mensah, [1998-99] SCGLR,360 the court unanimously held that one could not be punished in the absence of a wilful breach of order to do or refrain from doing some act.
The court speaking through Bamford-Addo JSC pronounced on page 368 as follows:
“By definition, a person commits contempt and may be committed to prison for wilfully disobeying an order of court requiring him to do any act other than the payment of money or to abstain from doing some act; and the order sought to be enforced should be unambiguous and must be clearly understood by the parties concerned. The reason is that a court will only punish as contempt, a wilful breach of a clear court order requiring obedience to its performance. Therefore disobedience which is found not to be wilful cannot be punished.”
The court in the same case also relied on Agbleta v The Republic [1977] 1 GLR 445, CA per Azu Crabbe CJ;
“It seems to follow from the authorities that wilful disobedience of the order of the court must be established before a person can be held to be guilty of contempt… This court thinks that it is one thing to find unsatisfactory the appellant’s explanation of his conduct, and quite another to infer wilful defiance from his conduct.”
Yet again Bamford-Addo JSC referred to the case of Kangah v Kyere [1979] GLR 458, from the head note that;
“to obtain a committal order for contempt, the applicant must strictly prove beyond all reasonable doubt that the respondents had wilfully disobeyed and violated the court’s order… In the absence of such evidence, the respondents could not be guilty of contempt”
The Supreme Court stated the standard of proof required in contempt cases in the case of in Re Effiduase Stool Affairs (No 2) Republic vrs Numapau, President of the National House of Chiefs and others, Ex-parte Ameyaw II No. 2 {1998 -99} SCGLR 639, where the court stated as follows:-
“Since contempt of court was quasi-criminal and the punishment for it might include a fine or imprisonment, the standard of proof required was proof beyond reasonable doubt. An applicant must, therefore, first make out a prima facie case of contempt before the court considers the defences put upon by the respondents”
It is therefore clear that, just as in criminal cases, an alleged contemnor is presumed innocent until proven guilty so it is with civil contempt applications. An Applicant must therefore adduce sufficient evidence, documentary or oral to establish the essential elements of the offence of contempt. An Applicant who fails to meet the required standard of proof beyond reasonable doubt must fail in his quest to have a contemnor convicted of contempt.
The Supreme Court in the case of Republic vrs. SITO I Ex-parte Fordjour {2001 – 2002} SCGLR 322 stated the following as the essential elements when dealing with the offence of contempt:
1. There must be a Judgement or order requiring the contemnor to do or abstain from doing something.
2. It must be shown 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 the disobedience is wilful”.
Comparing the facts of the instant case to the principles of law enunciated in all the cases stated supra, it is apparent that the Applicant has not met the litmus test required of him to establish beyond reasonable doubt the offence of contempt against the Respondents.
In the first place, it is quite clear that the explanation of the 1st Respondent that it was a mistake on his part when he stated that he was served with the motion for stay of execution in this court four (4) clear days before he received the compensation is convincing reasonable and acceptable. This is further buttressed by the fact that it is an established practice that court processes are deemed to have been served when an Officer of this court asserts positively by affidavit of service that he had on such a date duly served the Respondent as the case might be.
In the face of the explanation of the 1st Respondent, the Applicants should have produced sufficient documentary evidence from the Registry of the Supreme Court to attest to the fact that 1st Respondent had been served four (days) before he received the compensation.
Secondly, the mini bank statement, shows conclusively the various dates upon which the 1st Respondent made the withdrawals. As had been stated supra, apart from the GH¢150.00 withdrawal by 1st Respondent on 30th July, 2008 all the other withdrawals of this compensation money had been made long before the motion for stay of Execution was filed in the Supreme Court on 28 July 2008.
In my opinion, the Respondents have not been proven to have had any knowledge of the pendency of the motion for stay of execution filed in this court on 28th July 2008 before 1st Respondent withdrew the compensation money of GH¢392,062.90 from 2nd Respondent’s bank.
In concluding this matter, there was no judgment, order or pending application duly served on the Respondents requesting them to do or abstain from doing something which they have wilfully flouted. This is an essential ingredient of proof of contempt. Once this crucial ingredient is lacking the application must fail.
Thirdly, under the circumstances the contemnor does not know what he is expected to do or abstain from doing and this has made the order or service of the process complained of highly ambiguous. To hold therefore that the Respondents are guilty of contempt would be a travesty of justice as the entire contempt proceedings is so nebulous and admits of no certainty, a key requirement in proof of contempt. It will be manifestly unreliable for a court of law to entertain and convict upon it.
Finally, the Respondents cannot be deemed to have wilfully disobeyed an order, judgment or a pending process of this court which they had no knowledge about.
In the premises, this application for contempt against the Respondents is dismissed as being entirely without any merit whatsoever.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
I agree
G. T. WOOD (MRS)
(CHIEF JUSTICE)
I agree
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
I agree
ANIN –YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AUGUSTUS ANANE-QUEBAH FOR THE APPLICANTS
THADDEUS SORY FOR THE 2ND RESPONDENT
