IN THE MATTER OF THE REPUBLIC vs. MRS. VIVIAN AKU BROWN AND 9 OTHERS EX PARTE ODWUMA LAKES FARMS AND RURAL ESTATES AND ANOTHER [2018]DLCA4658

IN THE MATTER OF THE REPUBLIC vs. MRS. VIVIAN AKU BROWN AND 9 OTHERS EX PARTE O... [2018]DLCA4658

Date	2018-02-06
Suit No.	CIVIL APPLICATION NO. H3/453/2018
Citation No.	[2018]DLCA4658

F.G. KORBIEH J.A. (PRESIDING)

BARBARA ACKAH-YENSU (MISS) J.A.

H. KWOFIE J.A.

[2018]DLCA4658
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													<main id="main" class="content" style="min-height: 60rem" >IN THE MATTER OF THE
REPUBLIC<o:p></o:p>vs.<o:p></o:p>MRS. VIVIAN AKU BROWN AND
9 OTHERS<o:p></o:p>(RESPONDENT)<o:p></o:p>EX PARTE ODWUMA LAKES FARMS AND RURAL ESTATES AND ANOTHER (APPLICANTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPLICATION NO. H3/453/2018&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;DATED:
6TH FEBRUARY, 2018<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>F.G.
KORBIEH, J.A. <o:p></o:p>On the 10/5/2017, the applicants herein filed an
application praying this Court to commit the respondents to prison terms for
contempt of court citing various breaches of orders of the Court the
respondents had committed. The application could not be moved on the return
date for reasons of non-service on the respondents and the case continued to be
adjourned until the 20/11/2017 when the 1st, 2nd and 4th
respondents filed a notice of their intention to raise a preliminary legal
objection to the application altogether. They intimated that the jurisdiction
of the Court to entertain the application to commit them for contempt of court
had not been properly invoked. On the 16/1/2018, this Court heard the argument
for and against the notice filed by the1st, 2nd and 4th
respondents. Their lawyer, Alfred Agyei-Mensah, Esq., argued as follows: the
applicants have failed to invoke the jurisdiction of the Court to entertain the
application to commit the 1st, 2nd and 4th
respondents for contempt of court because the posting of the notices as ordered
in the order for substituted service was not posted on the residences where the
three respondents reside but elsewhere. Counsel referred to article 19(3) of
the Constitution which provides that the trial of a person charged with a
criminal offence shall take place in his presence after he has been duly
notified of the trial, among other things. He also cited the case of Barclays Bank of Ghana Ltd. v Ghana Cable
Co. Ltd. and Others [1998-99] SCGLR which decided that proceedings against a party are deemed to commence only after
service on the party or notice on that party. The preliminary legal objection
was opposed by counsel for the applicants in the person of Baffour Assasie
Gyimah, Esq. who contended that even though personal service is required in
contempt cases, substituted service is permissible under Order 7 of the High
Court Civil (Procedure Rules), 2004 (C.I.47) and that he had obtained an order
for substituted service on the 20/6/2017 to serve the respondents by
substituted service. Curiously he cited the case of the Republic v. High Court (Commercial Division) Accra; Ex Parte Millicom
Ghana Ltd. &amp; Others (Superphone Co Ltd. Interested Party) [2009] SCGLR 41
(holding 1) in which the Supreme Court held that proceedings in an application
for contempt could not commence until the court has satisfied itself that the
respondents to the application had been personally so served. He however went
on to point out that having obtained an order for substituted service, the
applicants had effected service by posting notices at House No. 60 F/1, Osu
Accra, where the 1st respondent resides and also at the Adutso
Family Land Office at Abokobi near the Fish Pond as directed in the order for
substituted service. &nbsp;<o:p></o:p><o:p>&nbsp;</o:p>In our considered estimation of the issue under
consideration, we are not being called upon to decide on the legal issue
whether or not this Court’s jurisdiction has been properly invoked because
personal service had not been effected on the 1st, 2nd
and 4th respondents. Both counsel for the 1st, 2nd
and 4th respondents and the applicants spent quite some time and
energy trying to convince us that personal service is a sine qua non in any
case of contempt proceedings. That is trite law and cases such as Barclays Bank of Ghana Ltd. v Ghana Cable
Co. Ltd. and Others (supra) and
Republic v. High Court (Commercial Division) Accra; Ex Parte Millicom Ghana
Ltd. &amp; Others (Superphone Co Ltd. Interested Party) (supra) attest to
that. In the case before us, going by the facts, the case has gone beyond the
question of personal service and we are dealing with the issue whether or not
the applicants, having obtained an order for substituted service; did indeed
effect the substituted service properly and in accordance with the law. Whereas
it was the contention of counsel for 1st, 2nd and 4th
respondents that the applicants failed to effect proper service by failing to
post the notices on the respective places of abode or residences of the 1st,
2nd and 4th respondents, counsel for the applicants
argued that in so far as copies of the notices had been left at Adutso Family
Land Office at Abokobi near the Fish Pond as directed in the order for
substituted service, this amounted to proper service. In all the cases where
contempt is in issue, the courts have always been concerned that because
contempt is a quasi-criminal matter that may end up by taking away the liberty
of the individual, it must be treated with extreme care, thus the insistence
that a person facing contempt proceedings in court be served personally. But
the law also recognizes that personal service is not always possible in every
single situation hence the provision in Order 7 rule 6 of C.I. 47 for
substituted service. The applicants took advantage of this rule and obtained an
order under which they proceeded to serve the 1st, 2nd
and 4th respondents. Since counsel for the applicant repeatedly
referred to the order for substituted service during his submissions, we asked
him to produce the order to us for our perusal which he did by filing the same
at the Court of Appeal registry on the 22/1/2018. In the said order the 1st
to 9th respondents were ordered to be served by substituted service in
the following manner:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
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