IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT

OF JUSTICE, FINANCIAL & ECONOMIC CRIME DIVISION 2 HELD IN

ACCRA ON TUESDAY THE 12TH DAY OF MAY, 2020 BEFORE HER
LADYSHIP JUSTICE AFIA SERWAH ASARE-BOTWE (MRS.)

SUIT NO. CR/0407/2020

THE REPUBLIC

VRS

1. DANIEL YAW DOMELEVO RESPONDENT

EX-PARTE

YAW OSAFO-MAAFO & 4 ORS. APPLICANTS

RULING

This is an Application brought for and on behalf of the Applicants seeking

the following reliefs;

a) An affirmation that the Respondent’s refusal to file the required

documents and reply to the Notice and Grounds of Appeal within
the mandatorily stipulated time dictated by Rule 5(1) and (2) of
Order 54A of the High Court (Civil Procedure Rules) 2004 C.I. 47
pursuant to amendment by C.I. 102 constitutes contempt of this
Honourable Court.

b) An order committing the Respondent to prison; or in the alternative

for the imposition of any other punishment that this Honourable
Court may deem just and proper upon the grounds contained in
the accompanying Affidavit in Support.

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 c) Consequential orders, including the setting aside of the
Respondent’s said impugned decision against the Applicants.

d) And for any other or further orders that the Honourable Court will
deem meet.

This Application was filed on the 20th of January, 2020 with a return
date of 4th February, 2020.

The case was initially before this court, differently constituted and was
transferred by an Order of the Honourable Chief Justice dated the 25 th of
February, 2020 to the instant Judge “to be dealt with expeditiously
according to law”.

The parties appeared in this Court on the 28th of February, 2020. The
Court notes of 28th February, 2020 which is the testament to what
transpired by way of proceedings reads;

“The parties indicate that there will be no need for viva voce evidence or
cross-examination of anyone. They however wish to file written
submissions. They are to do so by 20/3/2020 simultaneously. Upon
service, Mr. Oppong for the Applicant shall have 48 hours to file a Reply on
point of law only.”

In effect, there being no intention or desire on the side of either party to

lead viva voce evidence, and having no further oral arguments, the case
was set down for Ruling 9th of April, 2020.

By the 9th of April, 2020 however, the city of Accra was in lockdown due
to the Covid-19 pandemic and this Court as well as others, did not sit,
accounting for the Ruling being read today, 12th May, 2020.

The parties have subsequent to the direction of the Court filed their
respective additional processes.

The Applicants filed a supplementary affidavit in support on

02/03/2020. They also filed their submissions on 20/03/2020.

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The Respondent’s submission was filed on 19/03/2020. The Applicants
were served with the Respondent’s written submission on the 23 rd of
March, 2020 at 1:20 pm, meaning that they were to file their Reply
within 48 hours, i.e. by 1:20 pm on the 25th of March, 2020. The
Applicants’ Reply was filed on 26/03/2020 at 12:20 pm.

Subsequent to the latter document, the Respondent has also filed a

process entitled ‘REPLY TO THE APPLICANTS’ WRITTEN
SUBMISSIONS FILED ON 20/03/20 AND REPLY TO RESPEONDENT’S
SUBMISSIONS FILED ON 26/03/2020’.

The propriety or otherwise of these processes filed by the respective

parties will be discussed in subsequent paragraphs in relation to
procedure and merit.

THE CASE OF THE APPLICANT

The antecedents of this case as evidenced by the affidavits in support,

statement of case/written submissions supplementary affidavits are that
on the 11th of December, 2019, the Applicants caused their lawyer to file
a Notice of Appeal containing inter alia Grounds of Appeal with attached
documents as exhibits.

(Attached as Exhibit A).

The Applicants say that subsequent to the filing of the Appeal, a search
conducted at the Registry of the Commercial Division of the High Court
(where the case was pending at the time) revealed that;

a) The Respondent was served with the Notice of Appeal (Exhibit A) on

the 13th of December, 2019.

b) The Respondent though duly served has refused to file the required
processes mandated by law. Exhibit B attached to the Affidavit in
Support is the Search Report.

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It is the case of the Applicants that the refusal of the Respondent to file,
in particular, the documents on which he based the decision against
them, which is the subject of appeal, which the Applicants say, exposes
the Respondent’s contrived scheme deliberately fashioned to achieve his
own invidious agenda and also with a view to prevent the court from
ascertaining the full circumstances of their case and effectually ruling on
it in terms of Order 54A Rules 5(1) and (2) of C.I 47 pursuant amendment
by C.I.102.

It is the case of the Applicants that in accordance with the said Order
54A Rules 5(1) and (2) of C.I 47 pursuant amendment by C.I.102, the
refusal of the Respondent to file the legally mandated documents within
the stipulated time amounts to contempt of court.

The Applicants say that their conviction is confirmed that the

Respondent in taking the decision against them was actuated by malice
and lack of good faith in that though he has refused to file the
documents, he (the Respondent) has resorted to media propaganda to
damnify them and disparage their hard-earned reputation.

The Applicants’ case, further, is that the conduct of the Respondent

amounts to a gross, contumacious disrespect to the authority and
sanctity of the law and therefore, he ought to be punished in accordance
with law.

They also say that this Honourable Court is vested with the judicial
power and jurisdiction in the circumstances of this case to make
consequential orders, including setting aside the impugned decision of
the Respondent. They conclude with a prayer that the Respondent be
committed to prison or otherwise be punished for his contemptuous
conduct in accordance with law.

Subsequent to the last day of hearing, i.e. 28th of February, 2020, the
Applicants have filed a supplementary affidavit in support on the 2nd of
March, 2020.

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In essence, the supplementary affidavit seeks to challenge the
Respondent’s representation by Thaddeus Sory Esq. The case of the
Applicants is that on the 28th of February, 2020, when the Court
enquired from Mr. Sory whether he was representing the Respondent, he
answered in the affirmative.

They say that it has since come to their notice that at the time the Court
made the enquiry about the lawyer’s representation, Mr. Daniel Yao
Domelevo, the Respondent herein, knew that the lawyer had not been
duly authorised so to do as the Auditor-General’s Application to the
Public Procurement Authority (PPA) for approval to enable the lawyer act
for him had been rejected. In evidence as Exhibit YM1 is a letter dated
28th February, 2020 and received on the same day after the proceedings
of the 28th of February, 2020.

They firmly assert that;

a) On the 7th of February, 2020, the Auditor-General wrote to the PPA

requesting for approval to single source legal services (as is
evidenced by Exhibit YM2).

b) That the PPA refused the request per a letter dated 20th February,
2020.

c) That notwithstanding the rejection, the Auditor-General (the

Respondent) in a letter dated the 27th of February, 2020, yet again
requested for approval to single source legal services to enable him
“engage the services of Learned Counsel Thaddeus Sory Esq., to
defend the Auditor-General in the Honourable Osafo-Maafo’s
Contempt proceedings initiated against the Auditor-General…”

d) That the above-mentioned approval to engage Mr. Sory for this

contempt case was also rejected by the PPA, as contained in its
letter marked and attached as Exhibit YM3.

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The Applicants say that at all material times, the Applicants say, the
Auditor-General knew or ought to have known that he had not been
granted any approval by the PPA, the only authority vested with power to
grant such a request, for the purpose of Mr. Sory defending these
proceedings.

It is further their case that the Auditor-General owes the court a duty, in
general, and specifically when facing these contempt proceedings, to be
candid with the Court, a duty that he clearly and contumaciously
decided not to discharge, thus aggravating his acts of Contempt of Court
and the consequences thereof.

The Applicants insist that these matters are being placed before the
Court in good faith, and that they are only motivated by the need for
obeisance to the law and also based on a duty imposed on all to ensure
compliance with law, inter alia, bringing any form of non-compliance with
the law to the notice of the appropriate state institutions, especially the
courts for the purpose of enforcement.

THE CASE OF THE RESPONDENT

The Respondent has opposed the instant application. The Respondent

denies a willful disregard of the authority of the Court or doing anything
to bring the administration of justice into disrepute, nor would he, as a
responsible citizen of this country, conduct himself in any manner as to
be in contempt of Court.

He therefore pleads that in the unlikely event that this court finds him
guilty of contempt based on the allegations made against him, he shall
not only unreservedly apologies to the court for any acts or omissions
that the court might find contemptuous, but he would further purge
himself in contempt should such a finding be made.

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On the matter of having willfully refused to file documents upon receipt
of the Applicant’s Notice of Appeal in order to enable the Court to proceed
with the hearing of the Applicants’ Appeal, the Respondent says that he
would only be required to file the documents he used in the disallowance
and surcharge in respect of which the appeal has been lodged as well as
his reply to the Applicants’ notice of Appeal after “receipt of the notice
and grounds of appeal” filed by the Applicants.

He states that by the rules of court, where a document is required to be

brought to the attention of a person, the first rule is that such a
document be brought to the attention of that person [and no other
person] by personal service of the document of that person.

Further, it is the position of the Respondent that should the Applicants

hold the view that the office of the Auditor-General, as constitutionally
created, is synonymous with a Government Department, within the rules
of Court, then, in that case, the notice ought to have been brought to his
attention by “serving it on the administrative head” of the Audit Service,
who at the material time of deposing to the affidavit, was the Deputy
Auditor-General in charge of Finance, Administration and Human
Resources by name Madam Roberta Asiamoah.

According to the Respondent, the notice and grounds of appeal was not
personally brought to his attention by “a bailiff of the Court or a process
server registered with the Court” or by the administrative head of the
Audit Service as required by the rules and as such he denies due service
of the process as is canvassed under paragraph 4 of the Affidavit in
support.

Rather, the Auditor-General says, the process was served on one

Richmond Aryee who is his secretary and that it came to his notice only
on the 13th of January, 2020 when he was reading through his
correspondence left on his desk by the said Richmond Aryee and that the

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correspondence had piled up during the period of December, 2019 to
January 2020.

The Respondent, in explaining his inability to go through his

correspondence thus resulting in the back log states that December
being the last month of the year, he is by law required to complete his
audit responsibilities and submit his report to Parliament by June this
year [2020] for which reason he has been busy and was unable owing to
his schedule to catch up with documents which were left on his desk by
Richmond Aryee. He described the service on Richmond Aryee as a
“substituted service” without an order of the Court.

(Attached as Exhibits 3 and 4 are the search report and affidavit of

service respectively).

He continues that notwithstanding the fact that he was never duly served
with the Applicants’ notice and grounds of appeal, he deferred to his
lawyer’s advice upon consultation when the said processes came to his
attention to waive his right to insist on compliance with the rules of court
on service to facilitate the hearing of the appeal process and also save
time and cost.

The Respondent says that by a letter dated 21st January, 2020 (marked
as Exhibit 5) his lawyers wrote to the Applicants through their lawyer,
requesting for their co-operation to file the documents used in the
disallowance and surcharge in respect of which the appeal had been
lodged as well as his Reply to the pending appeal, a proposition which he
says is permitted by the rules outside of the statutory time limitations.

The response he says he received from the Applicants, per a letter dated
the 24th of January, 2020 was which rudely insisted on pursuing the
application before the Court, even though, proceeding with the
application would be pointless and in bad faith, especially as the
contempt jurisdiction of as provided in the legislation is only intended to

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ensure that he files the very documents which he had already indicated
through his lawyers that he would file.

He argues that the Court would only be required to punish a person as

the Applicants are seeking to do in this matter in accordance with a
procedure provided for by law, whereas in this case, it is clear that the
procedure for invoking the contempt jurisdiction of the court has been
contrived and exploited only for vendetta and not bona fides, for the
vindication of the Court’s authority, for which reason, he says, the
Court’s jurisdiction to punish for contempt has not properly been
invoked.

Additionally, the Respondent raises issues of law in the affidavit in

opposition and written submission filed.

The Respondent’s case, as can be found in his affidavit in opposition and

very detailed written submissions filed on his behalf are summed up on
seven (7) grounds to the effect that;

i. The Respondent did not violate the provisions of Order 54A rules
5(1) and (2) of C.I. 102 as alleged by Applicants.

ii. The application before the Court does not properly invoke the
jurisdiction of the Court for the reliefs sought.

iii. Granted without admitting that the Respondent violated the

provisions of Order 54A rule 5(2) of C.I. 102, the violation was
not willful.

iv. The Applicants have made out no prima facie case against
Respondent.

v. Granted without admitting that a prima facie case has been

made against Respondent, Applicants have not been able to
prove Respondent’s guilt beyond reasonable doubt.

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 vi. Order 54A rules 5(1) and (2) are unconstitutional.

vii. The Application before the Court has been brought in bad faith.

THE LAW AND THIS CASE

PRELIMININARY POINT OF LAW

I must rule on a preliminary point of law that has occurred in this case in
relation to the supplementary or further affidavit and Reply to the
Respondent’s submission filed by the Applicants without leave and out of
time.

The directions of the Court given on the 28th of February, 2020, very
clearly, was to the effect that;

The parties indicate that there will be no need for viva voce evidence or
cross-examination of anyone. They however wish to file written
submissions. They are to do so by 20/3/2020 simultaneously. Upon
service, Mr. Oppong for the Applicant shall have 48 hours to file a Reply on
point of law only.

(Emphases mine)

An observation is made of a purported supplementary affidavit in support

filed without the leave of the court on behalf of the Applicants on the 2nd
of March, 2020, in obvious breach of the rules, to the effect that once the
court commences the hearing of the application, further affidavits may
not be filed except with the leave of the court, and even then, under
special circumstances.

See:

 S. KWAMI TETTEH : CIVIL PROCEDURE, A PRACTICAL

APPROACH @ PAGE 430,
 BIRD v. LAKE (1863) 1 Hem & M. 111@ 119,

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  SMITH v. SWANSEA DOCK CO. (1852) 9 Hare, App 1 xxn.
 ANDERTON v. YATES (1850) 15 Jur 833
 EAST LANCASHIRE RLY CO. v. HAYYERSLEY (1849) 8 Hare
72@ 86.

In the circumstances, this court will not consider the supplementary

affidavit in support and supplementary statement case at all and same
are accordingly struck out.

Further and in the alternative, it must be unequivocally stated that even

assuming without admitting that the said affidavit were procedurally
proper, it would on the content, be unmeritorious. The reasons for this
conclusion are discussed in the ensuing paragraphs.

Sections 2 and 8 of the Legal Profession Act, 1960 (Act 32) state;

Section 2— Status of Lawyers.

Every person whose name is entered on the Roll to be kept under this Part
shall—

(a) subject to section 8 of this Act, be entitled to practise as a lawyer,

whether as a barrister or solicitor or both, and to sue for and recover
his fees, charges and disbursements for services rendered as such,
and

(b) be an officer of the Courts, and

(c) when acting as a lawyer, be subject to all such liabilities as

attach by law to a solicitor.

Section 8—Solicitor's Licence.

(1) A person other than the Attorney-General or an officer of his department

shall not practise as a solicitor unless he has in respect of such practice a

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valid annual licence issued by the General Legal Council to be known as "a
Solicitor's Licence" in the form set out in the Second Schedule to this Act.

In the case of THE REPUBLIC VRS. HIGH COURT, ACCRA EX PARTE

TERIWAJAH & ANOR (REISS &CO; INTERESTED PARTY) SC (Civil
Appeal No. J4/24/2013), it was unequivocally decided that one cannot
sign documents or represent a party as a lawyer in court unless he has
obtained a valid solicitor’s licence for that purpose.

(See also the Ruling of the Supreme Court in HENRY NUERTEY

KORBOE VRS. FRANCIS AMASA (CIVIL APPEAL NO. J4/56/2014)
dated 21st April, 2016).

From the above statute and decided cases, the converse of the legal
position would also be true that a Court cannot prevent a duly licensed
lawyer from representing a party. In other words, what would enable a
Court to find a lawyer unfit or unable to represent a party would be the
absence or lack of a valid licence.

The issues raised about the lack of authorization by the Public

Procurement Authority (PPA) for the procurement of the services of Mr.
Sory in his representation of the Respondent, are, in my candid view, not
within the remit of this Court.

Article 187(5) of the 1992 Constitution states;

(5) The Auditor-General shall, within six months after the end of the
immediately preceding financial year to which each of the accounts
mentioned in clause (2) of this article relates, submit his report to
parliament and shall, in that report, draw attention to any irregularities in
the accounts audited and to any other matter which in his opinion ought to
be brought to the notice of Parliament.

Those issues raised regarding the contractual relationship with Mr.

Thaddeus Sory are matters to be dealt with by the properly-mandated

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body in the course of auditing the accounts and operations of the
Auditor-General and his Office, which is the Parliament of Ghana. Those
matters are totally irrelevant to the determination of this case.
See:

 Order 20 rule 9 of C.I. 47; and

 ROSSAGE v. ROSSAGE AND OTHERS [1960] 1 ALL ER 600
(HEADNOTE) CA

Yet another matter on procedure has to do with the time for the filing of
the processes. It is also trite that when the Court directs the doing of an
act within a stipulated time, same must be respected.

In the case of AGBESI & OTHERS v. GHANA PORTS AND HARBOURS

AUTHORITY [2007-2008] 1SCGLR 464, it was held that a party in
whose favour an order of joinder or any other, has been made has a duty
to observe the terms of the order to the letter. If he did not take such
steps as are necessary to comply with the terms and implement them,
the order becomes void and would lapse. Thus leave to amend is void if
the amendment is not made within the stipulated time.

See also:

 AYIWA v. BADU [1963] 1 GLR 86,

 MAHAMA HAUSA v. BAAKO HAUSA AND ANOTHER [1972] 2
GLR 269

The Court may however extend the time within which the amendment is
to be effected:

 KORANTENG II AND ANOTHER v. KLU [1994-96] 1 GLR 280.

By the same measure, when the Court directed that Mr. Yaw Oppong for
the Applicants file his Reply within 48 hours of service of the
Respondent’s submission, (especially when the court questioned the
parties about whether or not the time lines were satisfactory, to which

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both lawyers responded in the affirmative, he had no option than to abide
by the set schedule.

Having failed to do so within the stipulated time, same became void and
lapsed.

The court is further grounded in this position when one confirms the title
of the Reply filed by Mr. Oppong on 26/03/2020 as being;

APPLICANTS’ REPLY TO RESPONDENT’S SUBMISSIONS PURSUANT

TO THE ORDER OF THE COURT DATED 28TH FEBRUARY, 2020.

The Order of the Court, which is alluded to in the title, was very clear
and unequivocal. The filing of that document does not conform to the
said Order.

For the above reasons, on the law and the procedure, the processes
filed by the Applicants on the 2 nd of March and 26th of March, 2020
are struck down.

Further to the above, any references in the Applicants’ written address on

any of the matters dealt with in the said supplementary affidavit, would
also not be allowed as part of the record and are accordingly struck
down.

For the same reason of non-compliance with the rules of Court and the
Order of this Court, the purported “REPLY TO APPLICANTS’ WRITTEN
SUBMISSIONS FILED ON 20/03/2020 AND REPLY TO
RESPONDENTS’ SUBMISSIONS FILED ON 26/03/2020” filed by the
Respondent on the 27th of March, 2020 is also struck down as same is
not supported by any rule of procedure.

Finally, it has come to the notice of this Court that there is an application
on notice brought by the Respondent for an Order Striking Out
Applicants’ Supplementary Affidavit and Written Submission filed on the
26th of March, 2020. I have also noted the affidavit in opposition thereto
filed by the Applicants on the 30th of March, 2020.

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In view of the holdings contained in the preceding paragraphs, it is quite
clear that the issues arising in the said Motion and the opposition thereof
have been rendered moot, and same is accordingly struck out for that
reason.

The procedural matters now dealt with, the essence and merits of the
substantial application for contempt will be dealt with hereunder.

ON CONTEMPT OF COURT GENERALLY AND IN PARTICULAR UNDER

RULES 5(1) AND (2) OF ORDER 54A OF THE HIGH COURT (CIVIL
PROCEDURE RULES) 2004 C.I. 47 PURSUANT TO AMENDMENT BY
C.I. 102.

It must be noted that the instant application is unprecedented in that it

is not brought under Order 50 of C.I. 47 but under Order 54A. That
notwithstanding, most of the principles guiding the determination of
Contempt proceedings will be applicable.

The law is quite tritely known that Contempt in general is quasi criminal
and requires proof beyond reasonable doubt to succeed against an
alleged contemnor.

(See the case of REPUBLIC v. SITO I EX PARTE FORDJOUR [2001-

2002] SCGLR 322).

On the burden/standard of proof in contempt of court, please see

REPUBLIC v. NII ACHIA II; EX PARTE JOSHUA NMAI ADDO [2015] 83
GMJ 13.

In the case of REPUBLIC v. HIGH COURT, ACCRA; EX PARTE

LARYEA MENSAH [1998-99] SCGLR 360 at page 368 where the court
explained contempt of court as follows: “By definition, a person commits
contempt and may be committed to prison for willfully disobeying an order
of court requiring him to do any act other than the payment of money or
abstain from doing some act; and the order sought to be enforced should

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be unambiguous and must be clearly understood by the parties
concerned.”

There is yet another form of contempt of court which has to do with the
alleged contemnor attempting to or actually overreaching the order of a
court in such a manner as to prejudice the outcome of a case which is
pending before a court, or generally scandalizing the court or doing
anything to bring it into disrepute. The contempt application under Order
54A is akin to that and has similar considerations.

In the relatively more recent judgment of the Supreme Court in the case
of REPUBLIC v. BANK OF GHANA & 5 OTHERS EX PARTE BENJAMIN
DUFFUOR (J4/34/2018 dated 6/6/2018) reported on ghalii.org as
[2018] GHASC 37,(to be heavily relied upon in this decision) His
Lordship Baffoe-Bonnie JSC delivering the unanimous verdict of the
Court held regarding the modes of Contempt which I would reproduce
hereunder for want of a better method to express same;

“To resolve these two issues, we must first of all understand what
constitutes contempt of court. Contempt of court according to Oswald on
Contempt of Court (3rd edition) may be said to be constituted by any
conduct that tends to bring the authority and administration of the law
into disrespect or disregard, or to interfere with or prejudice parties,
litigants or their witnesses during the litigation. The law on contempt in
Ghana seems to be settled. The courts in Ghana have over the years
dealt with the issue of contempt of court in several instances. In the case
of In Re Effiduase Stool Affairs (No. 2); Republic v Numapau,
President of the National House of Chiefs and others; Ex parte
Ameyaw II (No. 2) [1998-99] SCGLR 639, in holding 1, the court held as
follows:

“ (1) Per Acquah JSC, Sophia Akuffo JSC concurring: contempt of

court was constituted by any act or conduct that tended to bring the
authority and administration of the law into disrespect or disregard

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 or to interfere with, or prejudice parties, litigants, or their witnesses
in respect of pending proceedings. And contempt of court might be
classified either as direct and indirect or civil and criminal. Direct
contempts were those committed in the immediate view and
presence of the court (such as insulting language or acts of violence)
or so near the presence of the court as to obstruct or interrupt the due
and orderly course of proceedings. Indirect or constructive
contempts were those arising from matters not occurring in or near
the presence of the court, but which tended to obstruct or defeat the
administration of justice, such as failure or refusal of a party to obey
a lawful order, injunction or decree of the court laying upon him a
duty of action or forbearance. Civil contempts were those quasi-
contempts consisting in failure to do something which the party was
ordered by the court to do for the benefit or advantage of another
party to pending proceedings, while criminal contempts were acts
done in respect of the court or its process or which obstructed the
administration of justice or tended to bring the court into disrespect.”

A respondent to a contempt proceeding may be found guilty in many

ways. The party may be found guilty of direct contempt or indirect
contempt which may be proved depending on the facts of the case in
several ways. The proof of direct contempt seem not to be as burdensome
as proof of indirect contempt. In most cases of direct contempt such as
insulting the judge or a party to a proceeding, or committing acts of
violence in court, the judge has the advantage of having a firsthand view
of the act constituting contempt. The opposite can be said of indirect
contempt where the court will have to rely on the testimony of third
parties to prove the offense of contempt.

The standard of proof in contempt proceeding is well settled. Contempt of

court is a quasi criminal process which requires proof beyond reasonable
doubt. This is so whether the act complained of is criminal contempt or
civil contempt as was rightly stated in Comet Products UK Ltd v.

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Hawkex Plastics Ltd [1971] 1 All E R 1141 at page 1143-1144, CA.
The court in that case held as follows:

"Although this is a civil contempt, it partakes of the nature of a

criminal charge. The defendant is liable to be punished for it. He may
be sent to prison. The rules as to criminal charges have always been
applied to such proceedings. It must be proved with the same degree
of satisfaction as in a criminal charge."

The view that contempt of court requires proof beyond reasonable doubt
was rehashed in the case of Akele v Coffie and Another and Akele v
Okine and Anor (Consolidated) [1979] GLR 84-90. It was held that:

“In order to establish contempt of court even when it was not

criminal contempt but civil contempt, there must be proof beyond
reasonable doubt that a contempt of court had indeed been
committed”

Contempt of court may be committed intentionally or unintentionally. It

is no defense to a charge of contempt for a party to prove that he did not
intend to commit contempt of court. In Republic v Moffat; Ex parte
Allotey [1971] 2 GLR 391, it was held that it was no defense for a party
facing attachment for contempt to swear to an affidavit deposing that he
did not intend to commit contempt of court. Intentional contempt may
arise in two ways:

 where a party willfully disobeys an order or judgment of a court,

and
 where a party knowing that a case is sub judice, engages in an act
or omission which tends to prejudice or interfere with the fair trial
of the case despite the absence of an order of the court.

In cases of willful disobedience of an order or judgment of the court, the

following elements have to be established:

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 1. That there is a judgment or order requiring the contemnor to do or
abstain from doing something;
2. That the contemnor knows what precisely he is expected to do or
abstain from doing; and
3. It must be shown that he failed to comply with the terms of the
judgment or order and that his disobedience is willful.

See the case of Republic v Sito I; Ex parte Fordjour [2001-2002]

SCGLR 322. In that case, His lordship T.K. ADZOE stated as follows:

“The type of contempt charged against the Appellant involves willful

disobedience to the judgment or order, or other process of a Court; it
must import a demand to do or abstain from doing something. A
refusal to comply with that demand of the Court is what constitutes
the offence of contempt which the Courts consider as an obstruction
to the fair administration of justice and also as an affront to the
dignity of the Court. The offence interferes with the administration of
justice because it in effect denies a party his right to enjoy the
benefits of the judgment or order; it is an affront to the dignity of the
Court in this sense that it is viewed as an act deliberately contrived
to undermine the authority of, and respect for, the Court. And the law
treats it as a quasi-criminal offence to vindicate the cause of justice.
Some degree of fault or misconduct must be established against the
contemnor to show that his disobedience was willful.”

Also in Republic v High Court Accra; Ex parte Laryea Mensah

[1998/99] SCGLR 360, the Supreme Court held that for an act of a
party to amount to contempt of court, it must be established that he has
been guilty of willful disobedience or to have willfully violated a specific
order of a court.”

Thus in the case of REPUBLIC v. MENSA-BONSU &OTHERS; EX

PARTE ATTORNEY-GENERAL [1995-96] 1 GLR 377@403, the learned
Adade JSC stated;

19 | P a g e
“There are different forms of contempt. Underlying all of them, however, is
one basic notion, that the roadways and highways of public justice should
at all times be free from obstruction. Conduct which tends to create such
an obstruction constitutes contempt. Thus interfering with witnesses or
jurors; frightening off parties to litigation; refusing to answer questions in
court; commenting on pending proceedings in such a manner as to
prejudice the outcome; running down the courts and the judges; refusing to
obey an order of a court any of these, if calculated to, or tend to, impede or
obstruct the course of justice will constitute contempt. And conduct
complained of therefore must be viewed and assessed against the
backdrop of this basic principle.”

There is now also the mode of contempt as is envisaged under Order 54A
Rules 5(1) and (2) of C.I 47 pursuant amendment by C.I.102, which
is relevant for our purposes and which is akin to what the Supreme
Court in the Ex Parte Duffour case and others has dealt with which
has to do with failure to do something which the party was ordered by
the court to do for the benefit or advantage of another party to pending
proceedings, .

The legislation states;

5(1) The Auditor-General shall, within fourteen days after the receipt
of the notice and grounds of appeal, file with the Registrar

(a) Five copies of all the documents used by the Auditor-General

in the disallowance and surcharge in respect of which the
appeal has been lodged, and

(b) The reply to the notice and grounds of appeal which shall set
out consecutively and under distinct heads a concise
statement of the facts and points of law on which the Auditor-
General intends to rely.

20 | P a g e
(2) the failure by the Auditor-General to file the required documents
within the time prescribed under subrule (1) constitutes a contempt
of the High Court.

After having assessed the cases of the Applicants and the Respondent,
certain issues of fact and law have been canvassed which will be dealt
with, but only a few will be dealt with.

These are;

a) Whether or not Order 54A Rules 5(1) and (2) of C.I 47 pursuant
amendment by C.I.102 are unconstitutional.

b) Whether or not service of the notice and grounds of appeal was duly
effected on the Respondent.
c) Whether or not the Respondent can be held liable in contempt of
court.

These issues were not exactly the ones canvassed by the parties per their
affidavits and submissions filed, however, in view of the matters at stake,
and in the light of the relevant legislation in this case, the court is of the
considered view that these would best facilitate the settlement of the
matters between the parties.

On the authority of the court to set down what issues are relevant in a
case I shall make reference to the case of FIDELITY INVESTMENT
ADVISORS v. ABOAGYE ATTA (2003-2005) 2 GLR 188, CA, in which it
was held that what issues were relevant and essential was a matter of
law entirely for the judge to determine.

See also DOMFE v. ADU (1986) 1 GLR 653, CA per (Abban JA as he

then was) in which he stated that although several issues were set down
in the Summons for Directions for trial, most of them could hardly be
described as relevant. To his mind, which issues were relevant were those
that could dispose of the case one way or the other.

21 | P a g e
See also: FATAL v. WOLLEY [2013-2014] 2 SCGLR 1070 @ 1076 per
Wood CJ, in which it was held that the court is not bound to deal with
every issue, whether relevant or not, at the time of determining the case
by way of Judgment. The learned Chief Justice of the land stated;

“…Admittedly, it is indeed sound basic learning that courts are not tied
down to only the issues agreed upon by the parties at pre-trial. Thus if in
the course of the hearing, an issue is found to be irrelevant, moot or even
not germane to the action under trial, there is no duty cast on the court to
receive evidence and adjudicate on it. The converse is equally true. If a
crucial issue is left out, but emanates at trial from either the pleadings or
the evidence, the court cannot refuse to address it on the grounds that it is
not included in the agreed issues.

By the same measure, this court is mandated to ensure that this case to
dealt with properly and completely by considering those issues that
would best serve the purpose.

The issues will be dealt with in the order in which they are raised.

(A) ON WHETHER OR NOT ORDER 54A RULES 5(1) AND (2) ARE
UNCONSTITUTIONAL.

It is the case of Mr. Sory for the Respondent that not Order 54A rules 5(1)
and (2) are unconstitutional because the Rules of Court Committee
exceeded its jurisdiction when it inserted a sanction-creating rule. It is
further his case that the Rules of Court Committee’s function is to “make
rules and regulations for regulating the practice and procedure of all
courts in Ghana” and that this mandate does not extend to making or
providing for sanctions akin to a criminal nature upon default in
complying with the rules that it makes.

Mr. Sory cites Article 157(2) of the 1992 Constitution. The entire Article
157 states;

(1) There shall be a Rules of Court Committee which shall consist of -

22 | P a g e
 (a) the Chief Justice, who shall be Chairman;

(b) six members of the Judicial Council other than the chief Justice
nominated by the Judicial Council;

(c) two lawyers, one of not less than ten and the other of not more
than five years' standing, both of whom shall be nominated by the
Ghana Bar Association.

(2) The Rules of Court Committee shall, by constitutional instrument, make

rules and regulations for regulating the practice and procedure of all courts
in Ghana.

(3) Without prejudice to clause (2) of this article, no person sitting in a

superior Court for the determination of any cause or matter shall, having
heard the arguments of the parties to that cause or matter and before
judgment is delivered, withdraw as a member of the court or tribunal, or as
a member of panel determining that cause or matter, nor shall that person
become functus officio in respect of that cause or matter, until judgment is
delivered.

He also cites section 80(2) of the Courts Act, 1993(Act 459). The entire
section 80 of the Act provides;

Section 80—Rules of Court.

(1) Subject to the provisions of the Constitution, the Rules of Court

Committee established by article 157 of the Constitution may in
accordance with clause (2) of article 157 of the Constitution by
constitutional instrument, make Rules of Court for regulating the practice
and procedure of all courts in Ghana, which shall include regulations
relating to the prevention of frivolous and vexatious proceedings.

(2) Without prejudice to the generality of subsection (1) of this section the
Rules of Court Committee may, subject to the provisions of the Constitution,
make rules of court—

23 | P a g e
 (a) for regulating the practice and procedure of the Superior Court of
Judicature for the purposes of article 33 of the Constitution, (which
relates to the protection of rights by the courts);

(b) for the practice and procedure for petitions to the Supreme Court
challenging the election of a President under article 64 of the
Constitution;

(c) for the practice and procedure of the High Court of Justice with
respect to the exercise of the jurisdiction conferred on it by article 99
of the Constitution (which inter alia relates to the determination of
the validity of the election of a Member of Parliament and of the
Speaker of Parliament);

(d) for the practice and procedure of the High Court in respect of
appeals against a disallowance or charge by the Auditor-General for
the purposes of clause (10) of article 187 of the Constitution;

(e) for regulating the award of interest on sums claimed and found
by any court to be due and prescribing the rates of such interest;

(f) for regulating matters relating to the costs of the proceedings in

court and prescribing fees and allowances to be paid in respect of
any matter relating to the proceedings of any court;

(g) for regulating the sittings of the courts and prescribing the periods
of the vacations of the courts;

(h) for prescribing forms, registers, books, entries and accounts

which may be necessary or desirable for the transaction of the
business of any court.

(3) The Rules of Court Committee may also make rules—

(a) for the practice and procedure for the removal of a President
under article 69 of the Constitution;

24 | P a g e
 (b) for regulating the practice and procedure of inquiries conducted
before a Commission of Inquiry for the purposes of clause (2) of
article 281 of the Constitution and for regulating the practice and
procedure of any committee or other body of inquiry appointed by the
Government or established under any enactment; and

(c) regarding any matter in relation to which the Rules of Court

Committee is authorised or required by any enactment to make rules.

Mr. Sory in his arguments also notifies the court that there is pending
before the Supreme Court a suit entitled DZIFA GUNU v. ATTORNEY-
GENERAL & ANOR. (SUIT NO. J1/6/2020) in which he says, the
Plaintiff is claiming among other reliefs, a declaration that Order 54A
rules 5(1) and (2), which are at the centre of the instant contempt
application, are unconstitutional.

Thus, he says, on a proper construction of the law, no part of it vests the

Rules of Court Committee with any function beyond making rules and
regulations for regulating the practice and procedure of all Courts in
Ghana to include providing sanctions akin to a criminal nature upon
default in complying with the rules it makes.

He submits, in conclusion, that the Court ought to dismiss this

application on that score.

In the case of REPUBLIC v. JUDICIAL SERVICE OF GHANA; EX PARTE

CATHERINE DE SOUZA, (J5/12/2017) [2017] GHASC 38 (dated 11th April
2017), the court considered the difference between interpreting a
constitutional provision and applying a constitutional provision. It was
found that all courts and adjudicating authorities are obliged to apply the
provisions of the Constitution. Therefore, it would be a denial of justice to
parties if constitutional provisions are not considered by a court of law or
any adjudicating authority. Furthermore, it is only when the issue of
interpretation arises that a court must stay its proceedings and refer the
matter to the Supreme Court. In this matter, the court below was not

25 | P a g e
called upon to interpret any provisions of the Constitution but merely to
ascertain where the Registrar was a holder of a judicial office and
whether the holder of a judicial officer had judicial power.

Merely mentioning that a certain matter is unconstitutional is not

enough ground to merit a reference to the Supreme Court.

See also : ADUMOAH II V TWUM II [1999-2000] 2 GLR 409 SC.

The sources of law in Ghana, per Article 11(1) of the 1992

Constitution are;

(1) The laws of Ghana shall comprise-

(a) this Constitution;

(b) enactments made by or under the authority of the Parliament

established by this Constitution;

(c) any Orders, Rules and Regulations made by any person or

authority under a power conferred by this Constitution.

(d) the existing law; and

(e) the common law.

This Court is only expected at this stage to consider whether Order 54A
rules 5(1) and (2) are valid provisions for the time being.

Sight must not be lost of the fact that the Rules of Court Committee did
not, on its own pass the Constitutional Instrument. It was duly passed by
Parliament. In my view, until they are actually struck down, the Rules
under which the Auditor-General works, including Order 54A rules 5(1)
and (2) will be applicable.

For instance, it is a well-known fact that pending the decisions of the

Supreme Court in the cases of MARTIN KPEBU (NO.1) v. ATTORNEY-
GENERAL (NO.1.) (J1/7/2015 dated 1/12/15, reported on ghalii.org
[2015] GHASC 114 as and MARTIN KPEBU (NO.2) v. ATTORNEY-

26 | P a g e
GENERAL (NO.2) (J1/13/2015), in which the Supreme Court
determined that sections 96(7) and 104 of the Criminal Procedure Act,
1960, were unconstitutional, the courts continued to apply them.

Similarly, in the current circumstances, until the Supreme Court does

determine that Order 54A Rules 5(1) and (2) of C.I 47 pursuant
amendment by C.I.102 is unconstitutional; this court will apply them as
being good law.

It is held on this issue therefore, that the legislation in question, i.e.

Order 54A Rules 5(1) and (2) of C.I 47 pursuant amendment by
C.I.102 is good law and applicable.

The second issue on service of the notice and grounds of appeal, the
foundation of the contempt application being dealt with in this case will
now be dealt with.

(B) ON WHETHER OR NOT SERVICE OF THE NOTICE AND GROUNDS

OF APPEAL WAS DULY EFFECTED ON THE RESPONDENT.

The Respondent in his affidavit in opposition and the written submission

filed on his behalf insists that per the rules of court, the Respondent
ought to have been personally served with the notice and grounds of
appeal before time would start to run, culminating in liability for
contempt of court.

In the written submission, Mr. Sory cites Order 7 rule 2(1) and (2) of C.1.
47 which state:

Personal service

2. (1) A document which is required to be served on a person shall be

served personally unless the express provisions of these Rules otherwise
provide or the Court otherwise directs.

27 | P a g e
 (2) This rule shall not affect the power of the Court under any
provision of these Rules to dispense with the requirement of personal
service.

Mr. Sory interprets subrule 2 to mean the court dispensing with personal
service by way of an Order for substituted service.

In this case, the process which required service to merit a liability for
contempt of court was the Notice and Grounds of Appeal filed by the
Applicants on the 11th of December, 2019. (Exhibit A).

Per the Search Report dated the 13th of January, 2020 and attached to
the affidavit in support as Exhibit B, the Notice and Grounds of Appeal
was served on the Respondent on the 13th of December, 2019.

In general, the law has always been that a person cannot be held in
contempt of an order (or in this case a statute) unless he had notice of
the Order.

See: REPUBLIC v. BEKOE AND OTHERS; EX PARTE ADJEI [1982-83]

GLR 91

In that case, it was held that a civil contempt partook of the nature of a
criminal charge because conviction might entail
imprisonment. Consequently, the principle of law was quite clear that
where a person was charged with contempt of court, his guilt should be
proved with the same strictness as required in a criminal trial, i.e. proof
beyond reasonable doubt were unwilling to give evidence, to have asked
to cross-examine the sixth respondent who deposed to the affidavit.

It was held further that it was a legitimate defence to a charge of

contempt that the person charged had had no notice of the order; a
person could not be guilty of an order of the court of which he had had
no notice. The applicant had failed to satisfy the court that all the
respondents had notice of the order of the judicial committee prior to the

28 | P a g e
date of the alleged contempt, either because they were present in court
when the interim orders were made or that they were subsequently
served on them.

The above position of the law is further refined by the decision in the case
of the DEEPSEA DIVISION OF THE NATIONAL UNION OF SEAMEN
AND OTHERS v. TRADES UNION CONGRESS OF GHANA AND
OTHERS [1982-83] GLR 941, it was held that the court would only
punish as contempt a breach of injunction if it was satisfied that the
terms of the injunction were clear and unambiguous, that the
defendant had proper notice of the terms and that the breach of the
injunction had been proved beyond reasonable doubt. Where the
disobedience was unintentional or accidental, the court would not issue a
writ for attachment.

(Emphasis mine.)

On the other hand, Section 10 of the Audit Service Act, 2000 (Act
584) states;

Section 10—Appointment of the Auditor-General

(1) There shall be an Auditor-General who shall be appointed by the

President acting in consultation with the Council of State.

(2) The office of Auditor-General shall be a public office.

Furthermore, the State Proceedings Act, 1998 (Act 555) states at

Section 12—

Service of Documents.

Documents required to be served on the State for the purpose of or in

connection with civil proceedings by or against the State shall be delivered
at the office of the Attorney-General or to a representative of the Attorney-

29 | P a g e
General in any part of the country or to any officer specified under any
law.

(Emphases mine)

Further in the case of DAKAR LTD. v. INDUSTRIAL CHEMICAL AND

PHARMACEUTICAL CO. LTD. AND ANOTHER [1981] GLR 453 it was
held that at page 140 of the report in relation to order 10 of LN 140A
which is in pare materia with Order 7 of the current Rules of Court, that;

“A close reading of the provision seems to indicate that by personal service

is meant service on the person of the defendant. The case law on the
matter provides ample support for this. Illustrative of this is the interesting
case of Goggs v. Lord Huntingtower (1844) 12 M. & W. 503 at pp. 503-504,
where Alderson B. said of personal service, “Service means serving the
defendant with a copy of the process, and showing him the original if he
desires it,” It seems to me therefore that personal service is applicable only
to service on human beings as parties in whatever capacity, whether as
plaintiffs or defendants or the human agents and servants of such parties,
not on dehumanised, artificial entities like governments or companies. A
host of cases lend considerable support to this view. A few of them are
Redpath v. Williams (1826) 3 Bing 443; Rose v. Kempthorne (1910) 13 L.T.
730; Heath v. White (1844) 2 D. & L. 40; Jay v. Budd [1898] 1 Q.B.12, C.A.
and Hanmer v. Clifton [1894] 1 Q.B 238, D.C.”

Thus by law, service on the office of any public officer is proper service.

In assessing the evidence in this case, the Court would have to apply
what is known as the three-tier test to each of the elements of a crime.

In the case of THE REPUBLIC v. FRANCIS IKE UYANWUNE [2013] 58

GMJ 162, C.A, it was held per Dennis Adjei J.A that;

“The law is that the prosecution must prove all the ingredients of
the offence charged in accordance with the standard burden of
proof; that is to say the prosecution must establish a prima facie

30 | P a g e
case and the burden of proof would be shifted to the accused
person to open his defence and in so doing, he may run the risk of
non- production of evidence and/ or non-persuasion to the required
degree of belief else he may be convicted of the offence. The
accused must give evidence if a prima facie case is established else
he may be convicted and, if he opens his defence, the court is
required to satisfy itself that the explanation of the accused is
either acceptable or not. If it is acceptable, the accused should be
acquitted, and if it is not acceptable, the court should probe
further to see if it is reasonably probable. If it is reasonably
probable, the accused should be acquitted, but if it is not, and the
court is satisfied that in considering the entire evidence on record
the accused is guilty of the offence, the court must convict him.
This test is usually referred to as the three- tier test”.

The Respondent’s complaint is that the service was effected on his

Secretary, Richmond Aryee. According to the Respondent, his Secretary,
Richmond Aryee, added this Notice and Grounds of Appeal to an already-
existing pile on the Respondent’s desk and as such, it was not until the
13th of January, 2020 when he was ploughing through the pile of
documents on his desk that he saw the process which had been filed by
the Applicants and served as far back as the 13th of December, 2019.

Further, the Respondent says that “December being the last month of the
year, he is by law required to complete his audit responsibilities and
submit his report to Parliament by June this year [2020] for which reason
he has been busy and was unable owing to his schedule to catch up with
documents which were left on his desk by Richmond Aryee”.

In other words, the Respondent is saying that because he (and by

extension his entire institution) had an audit report to submit to
Parliament by June, 2020, his entire office would grind to a halt in all

31 | P a g e
things, and as such he was unable to take a look at documents which
had been left on his desk for his attention, including processes filed in
court, and served on him, for a full month! He insists that he had no
knowledge of the service of the Notice and Grounds of Appeal on him at
his office.

On the matter of knowledge, the law is clear, and it is trite learning that
knowledge may be actual, inferred, imputed or constructive.

In ASAMOAH v. THE STATE [1962] 2 GLR 207, SC, it was held, with
regard to the standard of proof of knowledge, that it is not necessary for
the prosecution to lead evidence of actual knowledge. Evidence from
which the knowledge of the accused may be justifiably inferred is
sufficient.

See also the Judgment of this court dated 23rd February, 2018 in THE
REPUBLIC v. PHILIP ASSIBIT & ANOR (Suit No. 122/14).

In my view, the Respondent ought to satisfy this court that despite the
proper service envisaged by law, and in the circumstances of this case,
there exists an extraordinary situation to depict not having had notice or
knowledge of a court process served at his designated office for a full
month.

After having assessed the case put forward by the Respondent, this court
is not satisfied that the Respondent has been able to do so in this case.
The long-winded explanation he gives is untenable and an afterthought.
Does the Respondent intend to put up, before this court, that a person of
the caliber of the Auditor-General of the Republic has a Secretary who is
so clueless as to leave court process in a pile on his boss’ desk without
calling his attention to it, for a full month?

Is it the case of the Respondent that the Head of an Institution like the
Ghana Audit Service in the person Auditor-General of the Republic can

32 | P a g e
actually have documents requiring his attention or minuting to his staff
for further action on his desk for a full month because he had to account
to Parliament six months thence?

I find that the explanation is not even remotely reasonably probable. I

hold therefore that the Respondent was duly served with, and had
due notice of, the Notice and Grounds of Appeal.

I shall now discuss the matter of the propriety or otherwise of the service
of this Contempt application on the Respondent.

It must be reiterated that this application is not the identical to Contempt

Proceedings under Order 50. It is one brought under Rules which are
tailor-made for the Auditor-General. Under Order 50 rule 1(4), there is a
specific requirement for personal service of a Contempt application on
the Respondent.

Order 50 rule 1(4) states;

(4) Subject to subrule (5), the notice of motion, together with a

copy of the affidavit in support of the application shall be served
personally on the person sought to be committed.

There is no analogous provision under Order 54A or even the Audit

Service Act, 2000 (Act 584).

The issue here would be what would constitute proper service on the
Respondent.

In this case, I have discussed what constitutes proper service of a

process on a public office or official such as the respondent and same
would not be rehashed but are applicable. In any case, the affidavit of
service indicates that the process was served on Richmond Aryee on the
instructions of the Respondent.

It must be stated for the avoidance of doubt that in a contempt

application such as we have in the instant proceedings, it would be

33 | P a g e
expecting the impossible and unworkable for it to be viewed that a
person in such high office as the Respondent or any other high-ranking
public official would be made available to a bailiff who shows up in his
office to effect personal service.

I therefore hold, that the service of the instant application of the

Respondent by serving his secretariat is proper.

I shall now conclude this Ruling with a determination of the final issue.

(C) ON WHETHER OR NOT THE RESPONDENT CAN BE HELD LIABLE

IN CONTEMPT OF COURT.

As stated in previous paragraphs, the kind of Contempt being dealt with

in this case, is statutory and a deviation from Contempt of Court as set
by precedent.

In the decision of this Court in SUIT NO. CR/290/2019 entitled THE

REPUBLIC VRS. FOOD AND DRUGS AUTHORITY & 2 ORS; EX-PARTE
COSMETICS ASSOCIATION OF GHANA, it was held that in general, the
faithful and dutiful discharge and performance of a statutory duty is not
one of the grounds that can give rise to contempt of court.

See also:

THE REPUBLIC v. JUSTICE ANIN YEBOAH & 5 ORS; EX PARTE

FRANCISCA SERWAA BOATENG dated 29th March, 2018 (SUIT NO.
CR/760/17) (Per His Lordship Eric Kyei Baffour J (as he then was);

REPUBLIC v. AWUKU; EX PARTE ADIAKU [1999-2000] 1 GLR 645

In this case, however, quite apart from the fact that it is a failure to do
an act that has founded this action, the legislation giving teeth to the
powers of the Auditor-General to issue notices of surcharges and
disallowances has itself set parameters for holding the Auditor-General in
contempt of court upon due service of the Notice and Grounds of Appeal
upon his failure to file the required documents used in respect of the

34 | P a g e
surcharge (and disallowance) within a period in excess of fourteen days
after the receipt of the notice and grounds of appeal.

In the preceding paragraphs, it has been found as a fact that the

Respondent was been duly served with the Notice and Grounds of
Appeal. It is not denied, or in contention that upon service on his
secretariat, the Respondent failed to do the needful by filing the required
documents within the stipulated fourteen days.

Since the fact of a failure to file within the stipulated time is undenied,
there is no cause for the court to make any incursions into making such
a finding of fact, save to assess the justification for the failure to file the
documents within the stipulated fourteen days.

On the legal effect of uncontroverted matters, please see the case of

HAMMOND v. AMUAH & ANOR [1991] 1 GLR 89.

SEE ALSO

 FORI V. AYIREBI [1966] G.L.R. 627, S.C.;

 QUAGRAINE V. ADAMS [1981] G.L.R. 599, C.A.

 TAKORADI FLOUR MILLS V. SAMIR FARIS [2005-2006] SCGLR

882.

In this case, the explanation given by the Respondent that he had such a
crowded desk that he could not have seen the Notice and Grounds of
Appeal and filed the required documents has been found to be
unacceptable.

In fact, the Respondent, upon discovering the said process, ought to have
taken immediate steps to have filed the processes, even assuming that he
only had notice on the 13th of January, 2020 as he claims. After all, the
audit had been completed and the Notice and Grounds of Appeal had

35 | P a g e
been served a month prior. Whatever documents may have informed the
decision that was the subject of appeal would already be in existence.

In such circumstances, as soon as the Notice and Grounds of Appeal

came to his notice (even if it was 13th January, 2020), if he had been
minded to abide by the Rules under which he exercised the very
jurisdiction to determine the liabilities of the Applicant, he could have
had copies made and filed or served without delay. Rather, per Exhibit
5, as at the 21st of January, 2020, when he was already a month and a
week out of time, the Respondent rather chose to write a letter to lawyer
for the Applicant to seek consent for an extension of time under Order 80
rule 4(3), failing which they would apply to the court for extension of
time.

That course of action to my mind, would not detract from the fact that he
had an obligation under law that he had failed to meet, which obligation
had accrued fourteen days after due service on him of the Notice and
Grounds of Appeal. A failure to do the needful would result in undue
delay and undermining the judicial process.

In the EX PARTE DUFFOUR CASE (cited supra), the Supreme Court

stated at page 10 of the Judgment;

“The judicial power of Ghana, by article 125(3) of the 1992 Constitution,

has been vested in the Judiciary. This power cannot be fettered by any
person, agency or organ including the President and Parliament. Any
conduct that contravenes this provision is clearly unconstitutional and
as such null and void. When a court is seized with jurisdiction to hear a
matter, nothing should be done to usurp the judicial power that has been
vested in the court by the Constitution of Ghana……

S. A. Brobbey in his book the Law of Chieftaincy in Ghana, 2008, in

addressing the issue of contempt arising in the absence of an order of the
court, made these comments at pages 479-480:

36 | P a g e
 “Judicial power is the authority given to courts to decide any dispute
referred to it by disputants. If neither the President nor Parliament
has authority to take away judicial power, it is inconceivable that
any individual or group of individuals can give onto themselves the
power to take it away under any circumstance. The party will be
considered as having despised the court and the judicial power by
any conduct on his part that brings about the removal of or reduction
in that power. Such conduct will amount to contempt of court.”

The fact of being the Auditor-General of Ghana or any other position

should not be held as a Sword of Damocles over anyone’s head, in a
manner as to undermine the judicial process.

Although this is not the type of contempt relating to a direct disobedience

of an order of a court, it is important to deal with the auxiliary matter of
whether or not the failure to file the requisite documents was willful in
the circumstances of this case.

In the Judgment of this court dated 23rd February, 2018, in THE

REPUBLIC v. PHILIP ASSIBIT & ANOR (FTRM 122/14) what
constitutes “willfulness” was discussed by this court.

Referring to and relying on the case TSATSU TSIKATA v. THE

REPUBLIC[2003-2004] SCGLR 1068, it was stated at page 52 of the
Judgment;

“The Court said that the word “willful” as used in section 179A (3)(a) of
the Act as amended covered both intentional reckless acts that would
end up in a financial loss to the State as well as acts with consequences
done with a bad or evil motive. The Court per Prof. Ocran stated at page
1108 of the report;

“Based on the foregoing analysis, we conclude that even when used in a

criminal statute, the word “willful” could, as a matter of law, cover cases in

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which a public officer voluntarily engages in a course of conduct which in
fact injures the state financially, whether with an evil or malicious intent to
injure the State, or simply actuated by a reckless and persistent disregard
for laid down corporate and statutory rules, or as a result of sheer
obstinacy, as part of bureaucratic culture of financial unaccountability. But
it is also true that “willful” may be used to describe an act which is done
not only deliberately or intentionally, but in circumstances where the doer
must also have intended or at least foreseen the probable consequences of
their non- action. We are of the view that the first interpretation of “willful”
puts more teeth into the effort to reduce corporate lawlessness and lessen
the potential incidents of financial loss to the State.

See also the case of THE REPUBLIC v. IBRAHIM ADAM & ORS [2003-
2005] 2 GLR 661.

Thus in LUGUTERAH v. NORTHERN ENGINERRING CO. LTD. [1980]

GLR 62, the Respondents were found liable in contempt but were not
punished because their conduct was not found to be willful or
intentional. In that case, the Court found that the Respondents had
acted contemptuously upon negligent legal advice, giving rise to the
contempt proceedings. That was the basis of the finding that the
Respondents were not willful in their actions.

Also in AGBLETA v. THE REPUBLIC [1977] 1 GLR 445, CA, The

appellant was a circuit court registrar. He was ordered by a judge of the
High Court to prepare a record of proceedings in a case to be submitted
on a specified date. If he failed to submit the record as ordered, he was
to appear before the judge on the specified date to explain the cause of
the delay. The appellant neither submitted the report nor appeared
before the judge as ordered. Consequently he was subpoenaed to show
cause why he should not be committed for contempt. His explanation
was that there were not enough type writing papers to type the record
and also it completely escaped his mind to appear in court on the

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specified date. The judge found the explanation unsatisfactory and
committed him for contempt. On appeal,

Held: the appellant's failure to comply with the order of the court was,
prima facie, contempt of court. But to be punishable, there must be a
contempt which implied an intentional or willful defiance or disobedience
of the court's powers. Consequently the trial judge had erred in finding
the appellant guilty of contempt merely because he found the appellant's
explanation of his conduct unsatisfactory.

I have in the preceding paragraphs discussed the unacceptability of the

Respondent’s failure to act in good time even after having been duly
notified, by his own showing, of the Notice and Grounds of Appeal.

I find, that knowing what is required as the Auditor-General, in

circumstances where the doer must also have intended or at least
foreseen the probable consequences of their non- action, especially when
C.I. 102 is one of the primary legislations with which he routinely works,
exercises his jurisdiction and discretion, a failure or refusal to file the
required documents and reply to the Notice and Grounds of Appeal
within the mandatorily stipulated time or as soon as he did have notice of
same, would be willful.

In the circumstances, the Court finds the instant application to be

meritorious and finds the Respondent liable.

The application for consequential orders, including the setting aside of

the Respondent’s said impugned decision against the Applicants is
refused as that is to be dealt with in the substantive appeal.

SENTENCE

Two admonitions of the Supreme Court weigh equally in determining the

sentence to be meted out to the Respondent.

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First is the one dealing with punishment in the EX PARTE DUFFOUR
CASE which has been heavily depended on in this matter. In that case,
His Lordship Baffoe-Bonnie JSC stated regarding the rationale for
punishment for Contempt of Court at page 21;

“One of the main objectives of the offence of contempt of court is to

protect the dignity of the court. The courts have been set up to ensure
peaceful settlement of disputes and for the maintenance of law and order.
It is in the general interest of members of the community that the
authority vested in the courts to protect them is not trampled upon. Any
act which therefore seeks to emasculate the authority of the courts
should not be countenanced. The members of the community must at all
times have confidence and hope in the authority of the courts to deliver
justice. The concept of contempt of court is to prevent unjustified
interference in the authority of the court. It is also designed to prevent
any act which seeks to damage the dignity of the court. Contempt of
court is not there to protect the dignity of any one individual person but
the overall dignity of the justice delivery machinery.

The duty to protect the dignity of the court is not vested in judges alone.
Where contempt is ex facie curia, i.e. contempt committed outside the
court, it is duty of litigants and in some cases the Attorney General to
bring proceedings to commit the contemnor for contempt. However,
litigants in such cases should be mindful not to assume that the essence
of the contempt proceedings is to protect their dignity or for their
personal satisfaction. The appellant in accordance with his public duty
started the contempt proceedings in the High Court. His role to protect
the dignity of the court ceased once the Court of Appeal found the
respondents guilty and convicted them for contempt. The appellant by
appealing to this court for an enhanced punishment seems to have
personalized the contempt application. This court cannot grant the
personal satisfaction the appellant is seeking in this case.”

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The above is juxtaposed with the dictum of His Lordship Justice Kpegah
JSC in the case of OSEI KWADWO II v. THE REPUBLIC [2007-2008]
1148 at page 1172;

“…..This court cannot be oblivious to the social problems confronting this

country now. It is in one word, indiscipline and in a few words disrespect
for the law from the top of the pyramid to its base. I think the courts must
step in now to save this country from the fate of the biblical Sodom and
Gomorra and send a clear message to the citizenry that the law maybe an
ass but certainly is a respecter of none…”

In sentencing the Respondent, this Court has in mind the very crucial
role of the Respondent in our country and would not wish to dog him and
discourage him or his office in the performance of his duties with a harsh
custodial sentence, especially in the midst of the Covid 19 Pandemic.

The court also notes that the documents in contention were eventually
filed on the 31st of January, 2020.

The court would, in the circumstances rather caution and discharge the
Respondent, and warn him to have as businesslike, serious and timeous
an attitude to appeals and challenges to the decisions he makes as he
would the surcharges and disallowances, as he cannot choose which part
of the Rules he uses in carrying out his statutory duties to obey and
which ones he would like to ignore, disregard and disrespect.

One cannot aprobate and reprobate by in one breadth holding his own
statutory institution in high esteem, while his actions (or inactions)
would undermine the work of the Court, another institution of State.

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