KWADWO NKANSAH ALIAS KWADWO DOCTOR vs. KYEREMANTENG AND ANOTHER [2010]DLHC8184

Date	2010-03-15
Suit No.	SUIT NO. C1/233/09
Citation No.	[2010]DLHC8184

HIS LORDSHIP JUSTICE JACOB B. BOON

SARFO GYAMFI FOR DEFENDANTS/RESPONDENTS/APPLICANTS

PEPRAH NYANTAKYI FOR PLAINTIFF/APPLICANT/RESPONDENT

[2010]DLHC8184
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													<main id="main" class="content" style="min-height: 60rem" >KWADWO NKANSAH
ALIAS KWADWO DOCTOR<o:p></o:p>vs.<o:p></o:p>KYEREMANTENG
AND ANOTHER<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C1/233/09&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 15TH
MARCH, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SARFO
GYAMFI FOR DEFENDANTS/RESPONDENTS/APPLICANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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PEPRAH
NYANTAKYI FOR PLAINTIFF/APPLICANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>On 25/02/10, the
defendants/respondents/applicants, hereafter called the contemnors were found
liable for contempt on an application filed by the plaintiff/applicant/ respondent,
to be referred to as the respondent. The contemnors were sentenced to a prison
term of thirty days each. They have now applied for review of the decision of
the court that found them guilty of contempt on the ground that the court
committed an error which is apparent on the face of the record.<o:p></o:p><o:p>&nbsp;</o:p>From their affidavit in support of the
motion, they deposed that when the contempt application was filed against them,
they denied they did not flout the order of the court in issue, but unfortunately,
despite their denial, their counsel included in their affidavit in opposition a
plea to be treated leniently by the court. For avoidance of doubt, after the
contemnors were found liable, they appointed Mr. Sarfo Gyamfi as an additional
solicitor, and he filed and moved the motion for review.<o:p></o:p><o:p>&nbsp;</o:p>Be it as it may, it is the further case
of the contemnors that the court committed an error when it interpreted the
plea for leniency in their affidavit in apposition to mean they were guilty in
spite of their denial of the charge. When Mr. Sarfo Gyamfi moved the instant
motion, he was of the opinion that the original lawyer for the contemnors might
have made a mistake when he included the plea for leniency in their affidavit,
though the contemnors denied the charge of contempt. He argued that the
mistakes of counsel for the contemnors cannot be visited on them.<o:p></o:p><o:p>&nbsp;</o:p>He also prayed that if the application
for review did not find favour with the court, it should nonetheless order the
immediate release of the contemnors from prison because they had, at the time
of arguing the motion for review, already served half of the prison term
imposed on them; that they had learnt their lessons and are not likely to put
up such conduct in future.<o:p></o:p><o:p>&nbsp;</o:p>If counsel had ended his submissions
here, there could have been a reasonable chance of considering the second part
of his plea which seems to suggest that the contemnors had regretted their
action. However, he went ahead to add that the contemnors will, at the trial of
the original suit, seriously contest title of the land in respect of which the
order of the court was made, and which was flouted by the contemnors. It had
been the case of the contemnors that they had not entered the land of the
respondent. And in their statement of defence they pleaded that the second
contemnor was winning sand on a different land which shares boundary with
respondent’s land. Respondent described his land clearly in paragraph 8 of his
statement of claim. It is true that the contemnors counter-claimed for a piece
of land, but from its description, it is different from the land of respondent
as identified in paragraph 8 of the statement of claim. Now, if the contemnors,
through their counsel are saying they will contest ownership of the land which
the respondent alleges is his, and in respect of which the court issued the
reservation order which was flouted by the contemnors, is it not as much as to
say that the order was flouted because the contemnors believed they owned the
land? I am of the opinion that Mr. Sarfo Gyamfi did not take the pains to study
the processes filed so far in this matter, as he would not have put up such an
argument, which in my view, confirms the claims of respondent that the
contemnors entered the land claimed to be his, excavated and carried sand from
it. That statement rather destroys the case for the contemnors as I regard it
as an admission by the contemnors that they collected sand from the land in
issue, but they did so because they believed it is their property. And as at
the time they did so, there was an order of the court restraining them from
entering the land, and that formed the basis of the contempt charge leveled
against them.<o:p></o:p><o:p>&nbsp;</o:p>Now, the respondent opposed the
application for review arguing by his c</main>