THE REPUBLIC vs. SOWAH BANKADI AND PURCHASER OR TRESPASSER [2012]DLHC7959

Date	2012-04-11
Suit No.	BMISC 174/2013
Citation No.	[2012]DLHC7959

DENNIS ADJEI SITTING AS AN ADDITIONAL HIGH COURT JUDGE

[2012]DLHC7959
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>SOWAH BANKADI AND PURCHASER OR TRESPASSER<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">BMISC 174/2013&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: 11TH APRIL, 2012<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;
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DENNIS
ADJEI SITTING AS AN ADDITIONAL HIGH COURT JUDGE<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;
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</div>DENNIS
ADJEI, J.A.:<o:p></o:p>The
Applicant is praying this court to commit the Respondents for contempt for
willfully and deliberately ignoring and defying an application for interlocutory
injunction which was pending before the District Court Madina, Accra. The
application for interlocutory injunction was seeking to restrain the respondents
from developing and or doing any act in respect of a plot of land at Dzan Ayor.
The 2nd respondent who &nbsp;was described by
the applicant as purchaser or trespasser was not served with the application
for committal for contempt. The 1st respondent&nbsp; who was served with the application opposed
it and&nbsp; stated that he had not done
anything contemptuous of the pending application&nbsp; before the&nbsp;
District&nbsp; Court. <o:p></o:p>The
brief facts of this application are that the 1st respondent herein
took an action against the applicant&nbsp;
herein at the District Court, Accra. The 1st respondent&nbsp;&nbsp; subsequently obtained judgment against the applicant
for a declaration of title&nbsp; to a plot at
Dzan Ayor and an order for interlocutory injunction. &nbsp;The applicant applied to the District Court to
set aside the judgment obtained by the 1st Respondent against him and
a further order staying the execution of the said judgment. When the
application to set aside the judgment was pending the applicant filed an
application for interlocutory injunction to restrain the respondent from
dealing with the subject matter of the suit in which he has obtained judgment.
It is this application which the applicant claims to have been flouted by the
1st respondent. The relevant paragraphs of the application for contempt are
paragraphs 11,12,13,14,15,16,17, and 18 of the supporting affidavit. They are
as follows:<o:p></o:p>“11.&nbsp;&nbsp;&nbsp;&nbsp; That
once again even at the time when the Motion on Notice to set aside whatever decision
he obtained in my absence was pending in court&nbsp;
yet to be heard, I noticed that the plaintiff/Respondent or person
claiming through him had re-entered&nbsp; my
land unlawfully which land is the piece or parcel of land he&nbsp; sold to me for which&nbsp; I made a part payment to him.<o:p></o:p>12.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the case&nbsp; is still pending&nbsp; for hearing&nbsp;
at the District Magistrate&nbsp; court,
Madina, at&nbsp; a time&nbsp; when I&nbsp;
had not &nbsp;recovered my money from
the&nbsp; plaintiff/respondent herein
whatever&nbsp; monies he had given to any
third party without my knowledge and consent.<o:p></o:p>13.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That my
money is still with the plaintiff/Respondent herein this Honourable Court had
not even granted any leave to the plaintiff/Respondent to return my part
payment to me.<o:p></o:p>14. That I have not relinquished my land to the Plaintiff/Respondent
herein.<o:p></o:p>15.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That while
the instant&nbsp; case is still pending before
a court&nbsp; of competent jurisdiction, the
plaintiff/respondent is trying&nbsp; to
build&nbsp; very fast day and&nbsp; night&nbsp;
on my piece&nbsp; or parcel of
land&nbsp; even though he had already&nbsp; received part payment for the purchase of the
land from me.<o:p></o:p>16.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That it is
the person the Defendant/Applicant herein has sold or is trying to resell the
land to the other purchaser or trespasser who is making constructional works on
the land.<o:p></o:p>17.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That if
the defendant/applicant and the other trespasser are not stopped or punished
for their wrong doing, they would render the eventual outcome of the trial at
the Magistrate court nugatory”.<o:p></o:p>The law
on contempt being civil or criminal is that it must be proved beyond reasonable
doubt because &nbsp;it is&nbsp; punishable&nbsp;
like a criminal offence. It is treated practically the same as a
criminal offence and the supporting affidavit is also treated the same as a
charge sheet. The particulars of the contemptuous act of the respondent must be
clearly stated and proved else the respondent would be acquitted.&nbsp; The&nbsp;
English court&nbsp; of Appeal in the
case of Jelson (estates) Ltd vs. Harvey [1984] 1 ALL ER 12 settled&nbsp; the standard&nbsp;
of burden&nbsp; of proof in
contempt&nbsp; matters&nbsp; as proof beyond&nbsp; reasonable doubt&nbsp; and the affidavit&nbsp; supporting the motion should be treated
practically as a charge sheet. The Supreme Court in the case of In Re Effiduase Stool Affairs (No.2). Republic
vs. Numapau, president of the National
House of chiefs and others; ex parte Ameyaw II (No. 2) [1998-99] SCGLR 639 quoted
the Jelson case with approval. The court at page 676 speaking through Atugubah
JSC held thus:<o:p></o:p>“I
would also remark that contempt of court is treated practically according to
the same rules as applicable to ordinary crimes because of its penal character.
It is therefore necessary to formulate the charges or allegations with
particularity so as to give fair notice of the same to the defendant to enable
him prepare to meet them. In England, this statutorily insisted upon. See
Jelson&nbsp; estates Ltd. vs. Harvey [1984] 1
ALL ER 12 CA. in the&nbsp; instant case, it appears
the charge&nbsp; of contempt relating to
the&nbsp; Mampong Traditional Council
proceedings was thrown&nbsp; into the&nbsp; application just&nbsp; in the course of narrative of events”.<o:p></o:p>