McDan escapes prison sentence by hair’s breadth …The full judgement

DECISION
Kweku T. Ackaah-Boafo, JA
APPLICATION FOR COMMITTAL FOR CONTEMPT
i. Introduction:

[1] The Applicant, Al-Hassan Iddisah has brought this contempt application to vindicate the law and its sanctions. He accuses the Respondent, Daniel McKorley of breaking the law by willfully disrespecting an order of this Court and thereby bringing the administration of justice into disrepute.

[2] Contempt of Court is the mechanism which the law provides for the protection of the integrity and authority of the court from improper interference.

Contempt arises in many ways but includes a breach of a court order, an attempt to obstruct the administration of justice, a deliberate attack upon the integrity of a court or a judge that interferes with proceedings, or some other form of conduct not foreseeable.

Contempt of court is part of a court’s inherent jurisdiction and, as it is not precisely prescribed or enacted, should be exercised with scrupulous care and only when the circumstances are clear and beyond reasonable doubt.

[3] The power of the High Court to punish for contempt is provided in Articles 19(12) and 126 of the 1992 Republican Constitution of Ghana, and re-enacted in S. 36 of the Courts Act, 1993 (Act 459) as amended; S. 10 of the Criminal Offences Act, 1960 (Act 29) and Order 50 of the High Court (Civil Procedure) Rules, 2004 (CI 47). Order 50 of CI 47 sets the parameters by which an Applicant may move the court for an order for an attachment for contempt of court.

[4] There is no codified legislation in Ghana that defines the act or omission that constitutes the offence of contempt unlike the United Kingdom which has the Contempt of Court Act . Ghanaian courts therefore resort to case law to resolve any issue regarding contempt when confronted with one.

[5] A succinct and frequently quoted definition of contempt is found in the Supreme Court case ofR v Sito I; Ex ParteFordjour , where the Supreme Court offered the following as constituting the offence of contempt:

a) there should have been a judgment or order which required the contemnor to do or abstain from doing something;
b) the contemnor knew what precisely he was expected to do or abstain from doing; and

c) that he failed to comply with the terms of that judgment or the order and that his disobedience was willful.

[6] Also, in In Re: Effiduase Stool Affairs (No.2); Ex Parte Ameyaw II (1998-1999) SCGLR 639 at 660 Justice Acquah (as he then was) offered the following definition of contempt when he opined that:

“In brief, contempt is constituted by any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.”
See also The Republic v. Bank of Ghana & 5 Others; Ex Parte Benjamin Duffour[2018-2019] 1 GLR 445

[7] In sum, therefore, any act or omission done to prejudice the fair trial or outcome of a case, or likely to bring the administration of justice into disrepute or interfere with any pending litigation and or to scandalize a court even after the trial of a case is contemptuous of the court. Also, wilfulness is required in the sense that the conduct alleged to be contemptuous must be deliberate and not accidental or unintentional.

Contempt of court, therefore,in my opinion serves the primary function of protecting the sanctity and integrity of the court and court proceedings and it also serves to sustain the rule of law, a check on conduct that potentially renders civilized society vulnerable to a Hobbesian state of anarchy and chaos.
ii. The Application, Affidavit Evidence and the Position of the Parties:

[8] By a Motion on Notice filed in this court on May 20, 2022 by the Applicant, he prays for “an order committing the Respondent for contempt of Court” based on the grounds articulated in the supporting affidavit.

[9] The background of this case according to the Applicant is that his late wife and mother own two contiguous plots of land at East Legon, Accra and have been in possession of the land since 2002 until the Respondent forcibly took over from them.

According to the Applicant, even though the Respondent knows the interest of his family, contrary to the Rules of Court he invoked the jurisdiction of the District Court, Madina by an ex parte motion to have possession of the lands. The application was granted and with the assistance of the police he took possession of the land.

[10] The Applicant herein filed an application for certiorari to quash the order of the Madina District Court on grounds of “want of jurisdiction, and/or excess of jurisdiction, violation of the rules of natural justice and nullity” and same was granted by the High Court on June 9, 2020. In granting the application the Court stated:

“Consequently, the Court hereby brings up to this Court for the purposes of quashing the ruling dated July 30, 2019 in Suit No. A11/104/19 and same is hereby quashed.
Now, having quashed same, I am of the view that the Status quo ante is restored based on the facts before me.

Consequently, the interested party who the Court is informed took possession based on the erroneous order is to vacate the land forthwith. The interested party or anybody claiming through him as an agent or servant or whatsoever is restrained from interfering with the Applicant’s possession”.
A copy of the ruling was attached as Exhibit “A”.

[11] The Applicant deposed that “the record of proceedings Exhibit“A” shows that the Respondent was represented by his lawyer who was in Court on the 9th June, 2020. The Applicant further deposed that,notwithstanding the ruling of the Court, the Respondent remained in possession of the land and “is contumaciously developing the land”.

The Applicant further deposed that “a penal notice and a copy of the ruling was filed for service on the Respondent but all attempts at personal service having failed, an order was obtained to serve him by substituted service with a copy of the ruling/order of 9th June 2020 and the penal notice as well as the day’s courts notes in the following manner:

1. By posting copies on the Notice Board of the Honourable Court.
2. By posting copies on the wall on the land, the subject matter of the suit and resultant application for certiorari.

3. By posting a copy at the offices of McDan Group, Okponglo-East Legon, Off the Madina, Accra Highway.
4. By one time publication in a National Daily”.
A copy of the Order has been attached as Exhibit “B”.

[12] The further deposition of the Applicant was that he complied with the order made by the Court and posted copies at all the places ordered to be posted and also published a copy in the Ghanaian Times Newspaper of Thursday March 24, 2022.

A copy of the publication was attached as Exhibit “C’. A copy of the posting on the land and the offices of the McDan Group at Okponglo, East Legon was also attached as Exhibit “D”.

[13] The Applicant contends that despite the service of the order and the penal notice, the Respondent continues to build on the land in flagrant disregard of the order of the Court.

He attached as Exhibits“E, E1, E2, E3 and E4” photographs embossed with dates showing workers alleged to be on the land after the service of the order of the Court.

The Applicant contends that Respondent’s continuation of the construction “is a contumacious disrespect of the orders of the Court and constitute contempt of Court which must be punished”. He, therefore, prayed the Court to convict him and punish him.

[14] At the oral hearing, Applicant’s Counsel, Nii Akwei Bruce Thompson rehashed the facts as contained in the affidavit in support and submitted that the Respondent has willfully disobeyed the order of the Court and should be punished.

Counsel referred to the affidavit in opposition filed by which the Respondent says the building was completed before he became aware of the order, and submitted that same is not true. Counsel referred to the Exhibit E series and invited the Court to examine the photographs and the time-stamps which show that the construction was on-going even after the service of the order.

Counsel also submitted that the Respondent has no excuse to say he was not aware of the order because his lawyer was in Court when the order was made.

Mr. Bruce Thompson also submitted that, in the affidavit in opposition, the Respondent continues to be deviant because he “keeps telling the Court that the land is for him and tells how he acquired same”. Counsel submitted that the Respondent is clearly in contempt of Court and must be committed and made to purge himself of contempt. Counsel cited the case of Republic v. Sito 1, Ex parte FordjourSUPRA to support his submission.

[15] In a 16-paragraph affidavit in opposition sworn to by the Respondent he says he has not done anything wrong. He deposed as follows:
“I acquired a parcel of land situate at Mpehuasem from one Yaw Adomako Koduah sometime in the year 2016 and had (sic) since been issued with a Land Certificate numbered GA53817. See Exhibit “A”.

That upon the said acquisition I obtained an order from the Madina Magistrate Court to take possession of same which he (sic) did.
That I then started developing the land into apartments to be sold to prospective purchasers.

That subsequently the order obtained from the Madina Magistrate Court was quashed by this Honourable Court on the 9th June 2020.
That the decision of the Honourable Court was not brought to my attention in goodtime”.

[16] The Respondent further stated that sometime in March 2022, “it almost two years after the said ruling that my attention was drawn to the decision by my workers who saw copies posted on the walls of McDan Group of Companies building at East Legon”.

According to him, at the time the decision was brought to his attention, he had already “finished construction of the apartments and even sold them. Pictures of the completed apartments are hereby attached and marked Exhibits “B” and “B1”.

[17] He also deposed that the Applicant has issued a fresh writ of summons against him and his grantor at the Land Division of the High Court for declaration of title to the land and served him by substituted service.

Copies of the Writ of Summons and Statement of Claim was attached as Exhibit “C” and “C1”. According to him, “by the time both the Writ of Summons and the application for committal for contempt were served on me I had already finished with the construction of the apartments”.

He concluded by stating that “it is not true that I have disobeyed the Court’s Order. The fact is that the said Order was not served on me or brought to my attention in good time”. He therefore prayed the Court to dismiss the application.

[18] Responding to the application by way of legal submission, learned Counsel for the Respondent Alhaji Farouk Seidu also rehashed the facts as contained in the supporting affidavit and submitted that the Court ought to be aware that “willfulness” is a key condition that must be established.

He submitted that “I wish to indicate that even if there was any disobedience of the order of the Court by the Respondent herein, then it was not willful”.

[19] Counsel further submitted that the law is that the order or ruling of the Court “must be served on the Respondent personally.

My Lord, the reason is to enable the Respondent to appreciate exactly what the court said. In the instant matter, for some reason known best to my learned friend. He chose to serve by substituted service instead of serving personally”.

Counsel further referred to the order of the substituted service and the modes of service set out by the Court as per Exhibit “B” and submitted that the Applicant ought to demonstrate that he complied with the modes of service. In this case Counsel submitted that Exhibit “D”, the search report does not indicate whether the modes were complied with.

Consequently, Counsel further submitted that even if the conditions of service were satisfied, as stated in the affidavit in opposition the order did not come to the attention of the Respondent “in good time” and it means it got to his attention “after the buildings were completed as captured in paragraph 11”.

Alhaji Farouk further stated “I am made to understand that the ruling was delivered on the 9th of June 2020 if you look at the proof of service (Exhibit D) my Lord will realise that the processes were served in the year 2022. During the time the ruling or order was made and the time that the order was served was about two years.

To be fair, if an order was made in the year 2020 and the Respondent claims the Defendant was evading service, would it take him two years to evade service? Counsel rhetorically asked.

[20] Counsel also repeated the deposition of the Respondent that a fresh writ of summons has been issued by the Applicant against the Respondent and his grantor and prayed the Court to consider same in determining the instant application because it borders on ownership.

Counsel again submitted that the Respondent is before the Court to point out there were “problems associated with the alleged service of the process. Indeed, if the order had come to the Respondent in good time, he would have stopped the construction of the building. In all this we want to let the Court understand that we have never disobeyed the Court’s Ruling willfully”.

[21] Counsel finally submitted that even though the Applicant ought to prove the case “beyond reasonable doubt” since this is quasi criminal he has failed to do so.

That notwithstanding, Alhaji Farouk submitted that “So my Lord let me also say that in the event that on sober reflection of all that has been said in this Court, you come to the unlikely conclusion that the Respondent has disobeyed your order, I will urge you and pray that you deal with him as a first offender, he is a business man of repute and in all his dealings he has not had any brush with the law.

His reputation is something he has jealously protected and therefore we pray the Court to conclude that he has not willfully disobeyed the court order”.

iii. The opinion of the Court & Analysis:
[22] Undoubtedly, this case is in a very narrow compass and not complex at all. The main issue turns on:
i) whether the Respondent’s behaviour undermined the authority of the Court; and
ii) whether the conduct of the Respondent is willful.

[23]Generally, it isroundly agreed based on statutory and decisional law that contempt of court being quasi-criminal, the standard of proof required is proof beyond reasonable doubt. See Kangah v. Kyere (1979) GLR 458 andR v. High Court Accra, Ex Parte Laryea Mensah (1998-99) SCGLR 360. See also the Canadian case of Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 SCR 217, 1990 which confirms a similar position in another Common Law jurisdiction.

Also, Section 13(1) of the Evidence Act, NRCD 323 provides that “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”.
R v. High Court Accra, Ex Parte Laryea Mensah (1998-99) SCGLR 36

[24] It is also noted that based on the nature of contempt and the policy rationale for the strict proof of same, Osei Hwere J. (as he then was) in R v. Bekoe & Others; Ex Parte Adjei(1982-83) 1 GLR 91 opined that a civil contempt partook of the nature of a criminal charge because conviction might entail imprisonment.

Consequently, the learned jurist stated that the principle of law was quite clear that where a person is charged with contempt of court, his guilt should be proved with the same strictness as required in a criminal trial of proof beyond reasonable doubt. The principle has subsequently been confirmed in a plethora of cases.

[25] Guided by the legal principles enumerated above, I shall apply myself to the parameters so set out to determine whether or not the Respondent has indeed undermined the authority of this Court, and in contempt of this Court’s order.

In doing so, I note that the bone of contention in this application is whether or not the Respondent’s construction of buildings on the disputed land after the Court quashed the erroneous order of the District Court, Madina on June 9, 2020 and ordering that the status quo ante be maintained over-reached and undermined the Court’s authority.

[26]Before considering the issues stated above in this application, I wish to first deal with the submission of Mr. Bruce Thompson that the Respondent cannot say he was not aware of the order made by this Court because his Counsel, Mr. Theophilus Donkor was in Court when the order was made.

It is my opinion that Counsel’s submission that because the Respondent was represented by a lawyer in Court, he should be deemed to have had knowledge of the order made is not the position of the law.

The law requires that a person be made aware of the order made personally and the consequences for disobeying same and therefore even where an individual is represented in Court by Counsel, and or where the person was in Court when the order was made, he/she ought to be served with the order.

That is the law and it is expressed in imperative terms per Order 43 Rules 5 and 7 of C.I. 47. It is consistent with case law as well. In R v. Bekoe& Others; Ex Parte Adjei SUPRAOseiHwere J (as he then was) stated at Holding 2 as follows:

“Although, on the evidence, the Respondents were represented by counsel before the committee, in matters of contempt, which would deprive the liberty of a subject, actual, but not imputed, notice of the specific terms of the orders must be proved”.

See also from another common law jurisdiction, the Canadian case of Bhatnager v. Canada (Minister of Employment and Immigration) SUPRA by which the Supreme Court of Canada also confirmed that even where a party was represented by Counsel, knowledge cannot be imputed but there must be a proof of personal service.

[27] Secondly, I also wish to state in response to Respondent’s Counsel’s submission that because this is a quasi-criminal matter “the standard of proof is high” and the Applicant has failed to meet the standard as it is a proof beyond reasonable doubt.

I think the time has come to remind learned Counsel and those with the same mindset and to re-state the fact that when the law speaks of reasonable doubt it is not a fanciful doubt.

To paraphrase the Supreme Court of Canada in R. v. Villoroman, [2016] 1 SCR 1000, 2016 SCC 33 (CanLII) at p. 1023, “A reasonable doubt is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and it is ‘logically connected to the evidence or absence of evidence’ (See also R. v. Lifchus, [1997] 3 SCR 320, 1997 CanLII 319 (SCC).

In other words, the reasonable doubt threshold does not require a fantastical suspension of disbelief. It is a doubt that logically arises from the evidence, or the lack of evidence based on common sense and reason.

[28] Now, dealing with the issues set out above, it is significant to note that there is no argument about the fact that the Respondent was served by substituted service the order made on June 9, 2020 together with a penal notice on March 10, 2022 when copies were posted on the offices of the McDan Group, Okponglo, East Legon. Also, a publication was made on the March 24, 2022 edition of the Ghanaian Times Newspaper.

Indeed, the Respondent admits and deposes in his affidavit in opposition signed on November 9, 2022 that “it was sometime in March 2022 almost two years after the said ruling that my attention was drawn to the decision by my workers who saw copies posted on the walls of McDan Group of Companies building at East Legon”.

To that extent, the Court finds it startling that Counsel for the Respondent still submitted that there are “problems” with the service. In so far as the service of the order and the penal notice are concerned it is the holding of the Court that the Respondent was served in March 2022.

[29] From the evidence, the Respondent contends that the service did not come to his attention in “good time” and therefore at the time he became aware the construction had been completed.

He has attached photographs to his affidavit of November 2022 to show that the buildings on the land are completed, and according to him already sold out. The photos are not dated and therefore I have no means of verifying when those photos were taken.

Despite the denial, I am afraid that in all his efforts the Respondent and his counsel did not answer one rather relevant question being the Applicant’s deposition and photographic evidence which show that on April 7, 2022 @4:55 PM, April 9, 2022 @ 10:26 AM and April 12, 2022 @ 4:02 PM and 4:08 PM the Respondent’s workers were captured building on the land.

Those photographs show that the buildings were not close to completion at all. The photographs were all taken after the date the Respondent admits the decision had come to his notice. At the oral hearing, Counsel was given the opportunity to explain, but he had no explanation for the Court.

[30] From the above therefore, and with the greatest respect to the Respondent and Counsel, the deposition and submission that at the time the decision of this court came to the knowledge of the Respondent he had completed the construction of the buildings are not sustainable because they are an affront to common sense.

The Court is not persuaded by the deposition and the photographs attached. In the opinion of the Court the photographs attached to the affidavit of the Respondent are a belated self-serving attempt by the Respondent to mislead the Court and same is rejected by the Court.

It is the holding of the court that the Respondent after becoming aware of the order of the Court brazenly chose to continue to build on the land to undermine and over-reach the Court’s authority and therefore interfered with the administration of justice.I shall therefore answer and resolve the first question posed above against the Respondent.

[31] Further, I also have no hesitation to conclude that the Respondent’s action was willful. To my mind, the deposition that the decision did not come to his attention on time, which was also repeated by his Counsel is disingenuous and flawed.

In my opinion there is no air of reality to it because I have carefully read all the processes filed and the various attempts to serve the Respondent with the order of the court which were unsuccessful.

I also wish to say that if indeed the Respondent is diligent and law abiding as he claims, he would have verified from Counsel he instructed to be in Court for the certiorari application in June 2020 and/or followed up with the Court to find out what happened.

The fact that he did not do any such thing but continued to build on the land, even though he was aware that the Applicant had filed process in the High Court to challenge the ex parte order he obtained at the District Court,convinces me that he just could not be bothered about what happened.

To my mind therefore, the deposition that the decision did not come to him on time clearly is an afterthought and I find it unworthy of consideration and belief and therefore I reject same.

In order that I may not be misunderstood and to be clear: while the Respondent cannot be fixed with notice of the Order of Certiorari which is a precursor to the contemptuous conduct before he was served, he has brought his bona fides and reputation into discussion and thus, the totality of his actions bears commentary.

[32] It is my finding that despite the denial; I am not convinced by the explanation given by the Respondent because it not persuasive and it is demonstrably hollow.

Based on all of the evidence, it is my holding that the Respondent adopted tactics to ignore the order of the court just to hurriedly build on the land and therefore his acts were deliberate and planned.

It was a well-orchestrated plan by the Respondent to undermine the Court’s authority and same was therefore willful and flagrant of the Court’s authority. Undoubtedly, in my view, it is exactly for people like the Respondent and their actions that the law of contempt was evolved.

iv. Conclusion & Disposition:
[33] I wish to reiterate to the Respondent that a finding of Contempt of Court transcends the dispute between him and the Applicant because this finding has nothing to do with the ownership of the land in dispute.

This finding is one that strikes at the very heart of the administration of justice because as was held many years ago “Contempt of Court” is well known in the vocabulary of the law.

It is also well known that it is not a phrase to be taken literally in any sense of being concerned with protection of the personal dignity of the Judge. It is rather a sanction to serve the administration of justice in the public interest that the law is no respecter of persons and their status in the society.

[34] In the context of the circumstances of this case, I can only end my analysis by quoting LordByron, a flamboyant British Aristocrat (1788-1824) who is credited with the statement that “He who holds no Laws in awe, He must perish by the Law”.

[35] Based on all of the above,I hold the view that a case of contempt has been properly made against the Respondent herein both under common law and statute; that is Section 13(1) of NRCD 323.

Undoubtedly, the Applicant has met his onus of proving the Respondents’ guilt beyond reasonable doubt. Consequently, I hold the Respondent in contempt of court and CONVICT him accordingly.

v. Sentence:
[36] In imposing sentence, I wish to disabuse the popular imaginary of the notion that the rich and influential people in our society together with public officials can disregard the rule of law and then when the wheels of justice catch up with them, proffer an apology.

For that matter, in this case, my initial inclination was that a fine will amount to a mere slap on the wrist of the Respondent and that incarceration is appropriate.

However, having heard from both Counsel and considered the passionate plea for leniency by learned Counsel for the Respondent and also taken into consideration the fact that this is the Respondent’s first brush with the law, I am of the opinion that the imposition of a fine is appropriate; Consequently the Court imposes a fine of GH¢40, 000.00 against Respondent; in default he shall serve 21 days in jail.

The fine when paid, GH¢15,000 out of the total of GH¢40,000 shall be paid out to the Applicant to help him offset part of his legal costs. No further Order as to Cost.

KWEKU T. ACKAAH-BOAFO, JA
(JUSTICE OF THE COURT OF APPEAL)

 

 

Cases referred to:
1. R v Sito I; Ex Parte Fordjour[2001-2002] SCGLR 322.
2. In Re: Effiduase Stool Affairs (No.2); Ex Parte Ameyaw II (1998-1999) SCGLR 639
3. The Republic v. Bank of Ghana & 5 Others; Ex Parte Benjamin Duffour [2018-2019] 1 GLR 445
4. Kangah v. Kyere (1979) GLR 458
5. R v. High Court Accra, Ex Parte Laryea Mensah (1998-99) SCGLR 36
6. Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 SCR 217, 1990
7. R v. Bekoe& Others; Ex Parte Adjei (1982-83) 1 GLR 91.

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