THE REPUBLIC vs. MANSO AKWAMU CO. LTD. AND 5 OTHERS; EX PARTE ABOTARE YE SSM GROUP & 8 OTHERS [2011]DLHC8253

THE REPUBLIC vs. MANSO AKWAMU CO. LTD. AND 5 OTHERS; EX PARTE ABOTARE YE SSM GRO... [2011]DLHC8253

Date	2011-06-01
Suit No.	SUIT NO. C12/100/11
Citation No.	[2011]DLHC8253

HIS LORDSHIP JUSTICE JACOB B. BOON

H. K. KODUAH FOR APPLICANTS

WILLIAM KUSI FOR RESPONDENTS

[2011]DLHC8253
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>MANSO AKWAMU
CO. LTD. AND 5 OTHERS;<o:p></o:p>EX PARTE
ABOTARE YE SSM GROUP &amp; 8 OTHERS<o:p></o:p><o:p>&nbsp;</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. C12/100/11&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: 1ST
JUNE, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>H.
K. KODUAH FOR APPLICANTS<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">

WILLIAM
KUSI FOR RESPONDENTS <o:p></o:p>

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

</div>This ruling is in respect of an application for the
attachment of the respondents for contempt of court. Before the instant
application, some of the respondents instituted a similar application against
the first applicant company and another in a Kumasi High Court presided over by
Justice Azumah. When the matter came for hearing, Justice Azumah ordered both
sides to desist from entering a property in dispute till the matter is disposed
of. The application before him was as a result of a limited injunction granted
in favour of the respondents by a Kumasi Circuit Court presided over by His Honour
Amo-Yartey. From the wording of the prohibitory order of Justice Azumah, both
sides were restrained to await the outcome of the suit at the Circuit Court
initiated by the respondent company against the applicants. The applicants are
now asserting that the respondents have willfully disobeyed the order of
Justice Azumah, given on 17th of November, 2010 and re-emphasized on
30th November, 2010; &nbsp;hence
the instant application by them calling on the court to attach the respondents
for contempt.<o:p></o:p><o:p>&nbsp;</o:p>Only the 2nd and 3rd respondents
filed affidavits in opposition. Though the others did not respond, the issue of
non service did not arise as their counsel appeared satisfied that all the
respondents were served. For this reason, he filed a written submission in
support of their case in opposition to the application. Be it as it may, the
affidavit of 2nd respondent, who deposed that he owns the Manso Akwamu
Mining concession, came to their defence when he deposed that they were not
present when the order now in issue was made by Justice Azumah. This was in
apparent response to the assertion of the applicants in paragraph 8 of their
affidavit in support of the application in the following terms:<o:p></o:p><o:p>&nbsp;</o:p>“8.
That the Respondents who were not parties to the original suit at the Circuit
Court were present at the High Court before Justice Azumah and were in the
company of 1st Respondent when the said orders were made. Thus, the
other Respondents i.e. 2nd, 3rd, 4th and 5th
Respondents were aware of the said orders when same were made, but deliberately
decided to flout same with gross impunity…”<o:p></o:p><o:p>&nbsp;</o:p>The above quoted deposition suggests that the respondents
were not parties to the action instituted at the Circuit Court. That is not wholly
true. The 2nd respondent admitted he instituted that action, as the
owner of 1st respondent company, against the applicants. What,
however, is a certainty is that the 3rd to 6th respondents
were not parties to that action. They were joined to the instant motion because
it was asserted they were in court, in the company of 2nd
respondent, when Justice Azumah issued the restraining order already referred
to. However, the 3rd respondent denied any knowledge of the court’s
order and also alleged that he was in a different concession, and not the one
in respect of which Justice Azumah made the order when he was arrested by the
police. &nbsp;Can the other respondents be held
for contempt in view of the fact that they were not parties to the action that
led to the prohibitory order of Justice Azumah? They could be found liable for
contempt if there is evidence that the order was served on them, yet with the
knowledge of it, they willfully flouted it. There are several judicial
authorities in support of the opinion just expressed by the court. For instance
in the Republic v Sito I; Ex parte
Fordjour (2001-2002) SCGLR 322 holding(1), rightly cited by counsel for the
applicants, it was held that:<o:p></o:p><o:p>&nbsp;</o:p>“The
essential elements for the offence of contempt are: (i) there must be a judgment
or order requiring the contemnor to do or abstain from doing something; (ii) it
must be shown that the cotemnor knows what precisely he is expected to do or
abstain from doing and (iii) it must be shown that he failed to comply with the
terms of the judgment or order and that his disobedience is willful”<o:p></o:p><o:p>&nbsp;</o:p>