HIGH COURT, ACCRA
DATE: 31 MAY 1967
BEFORE: ANTERKYI J.
CASE REFERRED TO
O’Shea v. O’Shea and Parnell (1890) 15 P.D. 59; 59 L.J.P. 47; 62 L.T. 713; 38 W.R. 374; 6 T.L.R. 221; 17 Cox C.C. 107, C.A.
NATURE OF PROCEEDINGS
RULING on an application for attachment for contempt of court. The facts are sufficiently stated in the ruling.
COUNSEL
Yaw Asare for the applicant.
Agbettor for the respondent.
[p.388] of [1967] GLR 386
JUDGEMENT OF ANTERKYE J.
This is an application by the applicant, the plaintiff in suit No. 591/66-entitled:
“J. K. Ohene, Head of Ghana Society of Religious LiberalsPlaintiff versus:
M. A. Tanko and six others Defendants, for an order attaching one C. C. Onny for “palpable contempt of court.”
In the substantive suit the plaintiff was claiming:“(a) A declaration that the plaintiff is the founder and executive secretary of the Ghana Society of Religious Liberals and is the only accredited officer authorised by the parent body to control, manage and direct the affairs of the said society and not the defendants.
(b) An injunction restraining the defendants, their servants, agents and workmen from interfering and/or carrying out the work of the said society.”
The writ in the suit was filed on 6 December 1966 and the defendants entered appearance on 8 December 1966, and filed their statement of defence on 22 December 1966.
Paragraphs (8), (9), (10) and (11) of the statement of defence state:
“(8) And in further denial of paragraphs (5) and (6) of the claim, the defendants maintain that as general secretary-treasurer of the said society, the plaintiff became a trustee of the properties both movable and immovable of the said society.(9) The defendants say that as they are the executive members and ordinary members of the society, they are entitled to call upon the plaintiff to render honest and accurate services to the society, and its members.
(10) The defendants and members of the said society have since the founding of the society been making financial contributions of £G10 and £G15 respectively to the plaintiff for the purpose of building a chapel and putting up charitable houses for the sick and poor members of the said society. The plaintiff has since then not used the moneys for the purpose aforesaid and has never opened a bank account for the said society.
(11) The defendants on several occasions approached the plaintiff to render account of all moneys collected from the members of the said society but the plaintiff refused and/or neglected to account for the moneys thus collected.”
[p.389] of [1967] GLR 386
And relying on the paragraphs (8)-(13) of the defence, the defendants had counterclaimed for the total sum of £G47,500 as being contributions collected by the plaintiff from members of the society.
At this stage of the pleadings it was clear that it was the properties of the said religious society that were being called to question. But by his reply the plaintiff had made the following averment:
“(7) In reply to paragraphs (8), (9), (10) and (11) the plaintiff says that apart from the few office furniture and literature the society has no movable and immovable properties and apart from life membership registration fee of £G12 12s. 6d. (¢30.30) no member contributes any sum towards the building of anynchapel. The society’s charitable donations to public funds and voluntary organisations are raised from wheeling fun now converted to spinning game authorised by the Ministry of Finance.” Inferentially, therefore, the plaintiff, the applicant in this application, was contending that the said society was a charitable organisation and that moneys of the society which were used for donations to the public were obtained by running the lottery, in the form of a wheeling fun or spinning game, authorised by the Ministry of Finance.And as one of the issues to be tried during the hearing of the summons for directions was, “(7) Any other issues raised by the pleadings,” the question as to which of the two parties had the right to run the lottery referred to fell to be decided by the court under this seventh issue in the summons for directions, inasmuch as each of the two parties, while denying the other to be a member of the said religious society,was claiming himself to be the real member of the said society.
On 13 January 1967 (after the filing but before hearing of the summons for directions on 16 January 1967) an application on notice was filed by the plaintiff-applicant praying for an order of interim injunction. “restraining the defendants to this suit from interfering with and/or obstructing the plaintiff in the management and the running and operation of the Ghana Society of Religious Liberals pending the hearing and determination of this suit, and for any further order or orders as to the court may seem fit.” Paragraphs (10)-(12) of the affidavit of the plaintiff in support of this application for the interim injunction read:[p.390] of [1967] GLR 386
“(10) That the defendants have established centres all over the country for the purpose of running lotteries under the cloak of the Ghana Society of Religious Liberals. They have printed licences in the name of the society and have acquired the services of certain people in the various centres who were not members of the society as their lottery workmen and who call themselves executives of the society.
(11) That while I was carrying out my lawful duties as head of the society in the society’s office the first and seventh defendants and their gangsters rushed into the office, seized and carried away books, membership cards, files and letters and have since been throwing stones and visiting the office to cause confusion.
(12) That the defendants among many other things have caused letter heads bearing the name of the said Ghana Society of Religious Liberals to be printed for them and are constantly using such letter heads in sending out letters to the Police and prominent persons alleging that they work for the society in the society’s head office at Tunisia House, Accra, and have been directing letters for the society through Box 2360 which belongs to one Mr. Addy instead of the society’s official letter Box No. 446.”
The first defendant, Mohamed Tanko, in his affidavit in opposition sworn to for himself and on behalf of the other defendants stated inter alia:
“(13) That as evidence of his interference, the plaintiff, knowing very well that the society’s license for a wheeling fun lottery is subsisting, did apply for fresh license for a spinning game for the same society.
(14) That the plaintiff having obtained by dishonest means a second licence for the spinning game, has been collecting money from some of the members of the society and from the public at large without accounting for the same to the society.
(15) That in reply to paragraphs (9) and (10) of the plaintiff’s affidavit, since the first writ of summons the plaintiff has written several letters to the Ghana Police falsely alleging that the Ghana Government has cancelled the society’s wheeling fun lottery, and that he has been appointed life leader of the society. That we as executive members of the society have a duty to inform the public
[p.391] of [1967] GLR 386
of the dismissal of the plaintiff from the post of General Secretary-Treasurer of the society”.
Thus from the facts stated in the affidavit of the respective sides in support and in opposition to the application for an order of interim injunction, during the hearing the court held that the right given by the Ministry of Finance to run the lottery in question was being contested by the parties, and therefore therunning of the alledged lottery by either side should be suspended to await the final determination of the substantive case, and the court therefore made an interim order in the following terms: “All operations for collecting moneys from the public by the plaintiff or the defendants or any member or ex-member or their agents or servants, of the Ghana Society of Religious Liberals must cease forthwith to await the result of the substantive suit … that a copy of this order be forwarded to the Commissioner of Police for purpose of publishing through the headquarters of each Police region for apprehending anyone who acts in disobedience to this order of the court to be brought before a court under the Act concerned.” “ Emphatically the court made this order on the basis that each party was denying that the other was a member of the said religious society and was claiming to be the party entitled to the running of the lottery in question.The hearing of the substantive suit started on 16 February 1967 and was continued on 1 March 1967 and adjourned to 16 March 1967. On 11 March 1967 an application on notice under Order 44, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), was filed and fixed for hearing on 16 March 1967 for an order for attachment of the respondent Onny for contempt of court. The respondent, C. C. Y. Onny, had filed an affidavit in opposition. Upon the hearing objection was taken by counsel for the respondent that such an application did not fall under Order 44 but under Order 59, r. 21 (1) and (2) and should therefore have first been made ex parte for leave. Counsel for the applicant later conceded and withdrew the application. Then came this application, in the same strain as the first, after an order nisi had been granted pursuant to Order 59, r. 21 (1) and (2).
The facts upon which this application was based were substantially these: After the granting of the order of interim injunction on 23 January 1967 referred to above, the plaintiff’s counsel on 7 February 1967 wrote a letter to the Principal Secretary, Ministry of Finance, asking him to suspend the licence until the final determination of the controversy between the parties. A copy of the interim
[p.392] of [1967] GLR 386
injunction order of the court was attached to this letter and delivered by hand personally by the plaintiff on 7 February 1967 to Mr. C. C. Y. Onny, a Principal Assistant Secretary in the Ministry of Finance.
Upon receipt by him, Mr. Onny, the respondent in this application, wrote a letter dated 8 February 1967 to the plaintiff.
A copy of this letter was exhibited as A to the affidavit in support of this application, and the letter itself was tendered in evidence during the hearing as exhibit A. At this juncture, it is significant to observe that this exhibit A was signed by C. C. Y. Onny, the respondent herein, “for Principal Secretary” and that it is addressed to “Mr. J. K. Ohene, Ghana Society of Religious Liberals, Central Organisation Secretariat, Tunisia House, P.O. Box 446, Accra,” and that there is nothing on exhibit A to show that copies of it were being sent to anyone else. Exhibit A reads as follows:
“MINISTRY OF FINANCE,
P.O. Box M.40,
ACCRA
8th February, 1967.
Ref: No. 12054.
Dear Sir,
THE GHANA SOCIETY OF RELIGIOUS LIBERALS
Your letter No. GSEL/MF/02 of 21 November, 1966.As you are already aware, the Department of National Lotteries is the sole organisation with legal responsibility for running lotteries/raffles under section 1 of the Lotteries and Betting Act, 1960 (Act 31). It is therefore an offence for any person other than an accredited agent of the department to organise lotteries/raffles in the country.
2. Religious bodies intending to use the proceeds of the lotteries/raffles for social, charitable or sporting purposes are however permitted under section 9 (2) to run these raffles. It has however, never been the intention of the Government to encourage societies or clubs to earn their means of sustenance from the running of lotteries/raffles. Your society was permitted under this section to run raffles, but it has recently been brought to my notice that the proceeds from these raffles have so far not been put to the use prescribed by the Act.
3. In the circumstances, it has been decided to withdraw the permit granted to your society in my letters reference Nos.
[p.393] of [1967] GLR 386
12054 of 30 November 1963 and 31 August 1966 respectively with immediate effect.
I have the honour to be,
Sir,
Your Obedient Servant,
(Sgd.) C. C. Y. ONNY,
for PRINCIPAL SECRETARY.
MR. J. K. OHENE,
GHANA SOCIETY OF RELIGIOUS LIBERALS
CENTRAL ORGANISATIONAL SECRETARIAT, TUNISIA HOUSE,
P.O. Box 446,
ACCRA.”
Upon the receipt of exhibit A by the plaintiff-applicant, on his instructions his counsel wrote a reply, exhibit B in support of this application, which reads thus:
“591/66. 15 February 1967.
Principal Secretary,
Ministry of Finance,
P.O. Box M.40,
Accra.
Dear Sir,
THE GHANA SOCIETY OF RELIGIOUS LIBERALS
Your letter No. 12054 of 8 February, 1967 has been referred to me by my client with instructions to reply to it.
In doing so I wish to refer you to my letter No. 591/66 of 7th instant in which I requested you to suspend the licence until the final determination of the controversy between the members of the society. Instead of this I am informed that you have withdrawn the said permit on the ground that it has been brought to your notice that the proceeds from the raffles have so far not been put to the use prescribed by the Act.
Whatever information you had before taking this step is no evidence against my client nor is it conclusive evidence to act upon them since my client was not allowed to defend himself. As a person cannot bepunished on mere allegations I think your decision is a bit harsh and in order not to interfere with
[p.394] of [1967] GLR 386
the proceedings pending before the court it would be better to withdraw this letter forthwith.
I regret to say that such a step is most prejudicial to the proceedings before the court and tantamounts to a contempt of court. It is alleged that my client has made use of the society’s funds which is denied and to conclude as you have done is to prejudge the issue before the court. Since such an issue is yet to be determined by the court you would not be blameless if you allow this letter to remain on the file.
I trust you would not allow this matter to be prolonged.
Yours faithfully,
(Sgd.) YAW ASARE, ESQUIRE.”
The respondent took no notice of the contents of that letter-he did not reply. Though the letter exhibit A written by Onny (the respondent) was addressed to the plaintiff alone, the plaintiff later found cyclostyled copies of it being distributed by the defendants to the public. One of these cyclostyled copies, tendered in evidence as exhibit A1 during the hearing, bears the following inscription at the bottom:
“Copied to:
The Commissioner of Police (C.I.D.)
Director, National Lotteries
Attorney-General
(For Mr. A. D. Tagoe’s information).”
Upon these facts the applicant contends, inferentially, that according to exhibit A it was the respondent alone who should have had a copy in his possession and that the distribution by the defendants to the public, of the cyclostyled copies in the form of exhibit Al was caused to be made by the respondent, tending to prove to the public that the Ministry of Finance is satisfied that the plaintiff (the applicant) has been making use of the proceeds of the raffles or lottery as alleged by the defendants.bThe applicant further contended by paragraphs (10)-(15) thus: “(10) That since this letter was published many members of the society have come to ask the plaintiff as to whether he had been found liable by the court for misappropriating the society’s funds to his own use. Others have started to shun the plaintiff.
(11) That assuming that any such information was received in the ministries the plaintiff ought to have been called to explain or refute the allegation but not to write to the
[p.395] of [1967] GLR 386
whole world repeating a most blatant and unfounded allegation of the defendants.
(12) That I consider the act of Mr. Onny most malicious and prejudicial to the determination of the case before the court and he must be brought to the court to apologise and purge his contempt.(13) That the court having restrained the operation of the raffles, the letter withdrawing the permit makes nonsense of the court’s order and therefore his acts are nothing short of contempt.
(14) That even though counsel for the plaintiff has written to the officer of the serious damage which his letter is causing but he had treated that letter with contempt and has made no effort to heal the wounds caused by his injuries to the plaintiff in his attempt to assist the defendants. Copy attached and marked B.
(15) That if the said letter is not withdrawn it would render the whole case purposeless and force the plaintiff to stop. I therefore swear to this affidavit in support of my application for an order ofattachment against the said C. C. Y. Onny.” During the hearing the respondent, by his counsel, in answer to these contentions of the applicant, relied on the facts in his affidavit filed on 16 March 1967 in the first application that had been withdrawn. In paragraphs (3) and (4) of that affidavit, even though the respondent contended that he had written exhibit A as a result of the petitions and correspondence and that the first petition was dated 9 May 1966 and was addressed to the Chairman of the National Liberation Council, by the Ghana Society of Religious Liberals, no copies of these were exhibited to the affidavit to support his contention. Even though he stated in paragraph (2) of his affidavit that he did sign exhibit A dated 8 February 1967 at a time when he did not know of the interim injunction order made by the court, he tacitly admitted the averment in paragraph (7) of the applicant’s affidavit that the plaintiff’s counsel “wrote and attached a copy of the court’s order to the Ministry of Finance on 7 February 1967 which was delivered personally on the same day”; for, the respondent, by his affidavit and through the argument of his counsel, ignored that contention of the applicant; and the respondent in the same way tacitly admitted the averment in paragraph (14) of the applicant’s affidavit as quoted above.
The respondent has not suggested that he made any attempt to send any reply to the letter exhibit B exhibited to the applicant’s
[p.396] of [1967] GLR 386
affidavit, to the applicant’s counsel. In his affidavit, by its paragraph (2) the respondent contended that he did not know of the existence of an interim injunction order of the court at the time he signed the letter exhibit A. And he contended that he signed exhibit A as a result of a long series of petitions and letters and investigations “both by officials of the Ministry of Finance and by the Police commencing from a petition addressed to the Chairman of the National Liberation Council by the Ghana Society of Religious Liberals dated 9 May 1966.” ‘
I infer from this that the alleged petition dated 9 May 1966 addressed to the Chairman of the National Liberation Council and alleged to have come from the Ghana Society of Religious Liberals came from the defendants in the substantive case, for I cannot imagine that the plaintiff-applicant could send a petition against himself. And the respondent continues by his affidavit:
“(4) That the decision to withdraw the permits of the Ghana Society of Religious Liberals from operating any raffles was taken as a result of these investigations and was taken in conformity with the current policy of the Ministry of Finance not to issue permanent permits for any person or organisation to run lotteries as being in keeping under section 11 (1) of the Lotteries and Betting Act, 1960 (Act 31), which states that subject to the provisions of this part, lotteries are unlawful. (5) That I am advised and I verily believe that lotteries authorised under section 9 (2) are only to be held as incidental items to an entertainment, e.g., bazaars, sales of work, a fetes or any similar entertainment and that the holding of the lottery should not be the only substantial inducement to persons to attend the entertainment.
(6) That upon due investigation by the Ministry of Finance and the Police it was found that the lotteries, the permits granted to the Ghana Society of Religious Liberals was not operating the lotteries in this spirit and the decision to cancel the permits was taken as a consequence of this discovery and was taken without knowledge of any motion pending before the court for an injunction against any party claiming title to the leadership to the said society.” And he contended unintelligibly,
“(7) That I am advised and verily believe that action in writing the said letter being all so either intended when calculated to bring honourable court into contempt or to render its jurisdiction in this matter in its effectual.
[p.397] of [1967] GLR 386
(8) I am advised and verily believe that the contempt (if any) accorded to this honourable court by my said letter was purely accidental and ought to be excused and this motion dismissed. (9) That I humbly apologise to this honourable court for any contempt which might have inadvertently caused to this court by my said letter written in my official capacity as Principal Assistant secretary acting for and on behalf of the Principal Secretary of Ministry of Finance and I swear to this affidavit in answer to the said affidavit of Mr. J. K. Ohene.”
These averments in his affidavit command no weight with regard to the matter in hand. The relevant sections of Act 31 still stand as statute law. Besides, by virtue of section 11 (1) and (3) only by a notice published in the Gazette can a notice previously published in the Gazette be cancelled or varied with regard to a lottery promoted by a society or association. A lottery promoted under section 9 of Act 31-the Section under which the alleged permit was granted-needs no permit, nor is it necessary that the promoters should be gazetted under section 11 (1) of the Act. Once a permit has been granted, whether under section 9 or section 11 of the Act, the question whether or not conditions stated under section 9 (2), section 10 (2) or section 11 (2) of the Act have been broken falls to be decided by the courts under section 9 (1), section 10 (3) and section 11 (1) of the Act (Act 31).
The Principal Secretary of the Ministry of Finance has no power to determine these issues. To do so is akin to encroaching upon the powers of the judiciary. I cannot find any authority vested in the respondent to write as he did, a letter in the strain of exhibit A, in respect of which he contemptuously and presumptuously ignored to send a reply to the letter exhibit B to the plaintiff’s solicitor who was in another sense an officer of the court. And the respondent tacitly admitted by ignoring paragraph (9) of the applicant’s affidavit, which is to the effect that though exhibit A, written by the respondent to the applicant, was directed to the applicant alone, the defendants were found distributing to the public cyclostyled copies of exhibit A in the form of exhibit Al, when the copy of exhibit A should be in the possession of the respondent only-for the respondent gave no explanation of this either in his affidavit or during argument by his counsel.
All the arguments and the authorities cited by counsel for the respondent Onny relative to executive acts and discretion not being questionable by the courts are irrelevant to the matter in hand. I
[p.398] of [1967] GLR 386
cannot find that the conduct of the respondent in the circumstances proved by the applicant falls within executive discretion.
It was contended principally on behalf of the respondent that he did not know of the existence of any injunction order and had no reason to believe there were proceedings pending. A mere averment without facts to substantiate it is not proof. The respondent is not a party to the substantive suit and cannot be said to be affected by the order of interim injunction. The crucial question is what was the state of his knowledge about the pending proceedings. Why did he not exercise his alleged executive powers or discretion to withdraw the permit when, as alleged by him in paragraph (3) of his affidavit, he received a series of correspondence and petitions commencing from a petition dated 9 May 1966, by writing a letter in the nature of exhibit A, until he received a copy of the interim injunction order together with the letter from the applicant’s solicitor as averred by the applicant in paragraph (7) of his affidavit and undenied by him? Why did he ignore the letter exhibit B written to him upon the receipt of exhibit A by the applicant’s solicitor? Why has he not exhibited to his affidavit copies of the alleged correspondence and petitions he received? Who were the officials of the Ministry of Finance who conducted the alleged investigations asstated in paragraph (6) of his affidavit?
I find as a fact that the respondent knew of the pendency of the proceedings in the substantive case before he wrote exhibit A and he intentionally wrote it with the ultimate object of causing the plaintiff- applicant to abandon the prosecution of his case in the court.
The respondent ignored to account for the distribution to the public of the cyclostyled copies of exhibit A in the form of exhibit A1, and has failed to explain how the copies of exhibit A1 came into the hands of the defendants for distribution as averred in paragraph (9) of the applicant’s affidavit and undenied by him. He has not explained how the inscriptions at the bottom of exhibit A1 came to be written when exhibit A itself does not bear those inscriptions.
The court was seised with the duty of finding at the end of the hearing of the substantive case which of the two parties were entitled to run the lottery in pursuance of the alleged permit or licence, and to find out whether the plaintiff had in fact, as contended by the defendants in paragraph (14) of their affidavit in opposition to the plaintiff’s application for interim injunction and inferentially averred by them in the statement of defence, misappropriated the proceeds of running the lottery. Exhibit A written by the respondent to the plaintiff-applicant inferentially decides against the applicant the question of misappropriation of these moneys.[p.399] of [1967] GLR 386
I find as a fact that the respondent was responsible for the distribution to the public of the copies of exhibit A in the nature of exhibit A1, and that he gave these cyclostyled copies to the defendants for that purpose to prove to the public that the defendants had won the substantive suit, and that he did so in collusion with the defendants, with the sole intention of prejudicing the fair trial of the substantive case and thus to interfere intentionally with the due administration of justice. This court takes a very serious view of this conduct of the respondent. During the hearing of this application the court suggested to the respondent that, from the facts stated in his affidavit and those in that of the applicant, he was prima facie in contempt of the court and he should therefore agree to resuscitate the alleged validity of the permit in question, but he refused to accept this suggestion by his counsel stating that he was acting within administrative policy and discretion. Such discretion, if any he had, I find to have been exercised in bad faith, in view of the circumstances stated above.
In O’Shea v. O’Shea and Parnell (1890) 15 P.D. 59 at p. 65, C.A. Lopes L.J. stated that: “There are different kinds of attachment for contempt. One kind of attachment is to enforce obedience to an order made in a civil action or proceeding, against one of the parties, in respect of something the doing or not doing of which is not a criminal act. That would not be an order in a ‘criminal cause or matter’ within s. 47. The case of Reg. v. Barnado ((1889) 23 Q.B.D. 305) is an example of that kind. But there is another kind of attachment which is the subject of an independent application against a person who is not a party to the suit in respect of an act done outside the suit, and which act is criminal. That, I think, is within the words of s. 47.
The application on which the present order was made was an application by the petitioner in the divorce action, in reference to an attempt made by a stranger to the suit to interfere with the administration of justice in the action, but it is made outside the action. The object of the application was to obtain the punishment of the appellant, and the proceeding ended with the order against him. I am clearly of opinion that this order was made in a criminal matter.”
The respondent, I find, is a type of person who abuses his position as an officer of the Ministry to question contumeliously the authority of the courts.
[p.400] of [1967] GLR 386
The order of this court is that, the respondent C. C. Y. Onny having been found to be in contempt of the court in the above circumstances, is hereby ordered to suffer imprisonment for two months commencing from the date of apprehension.
I order that exhibit A is hereby revoked in so far as it relates to the withdrawal of the permits or licences in question and that the validity of the said licences should stand unimpeached. Execution suspended pending determination on appeal, if any should lie.
DECISION
Contemnor sentenced to two months’ imprisonment.
Sentence suspended pending appeal, if any.
S.E.K.
