HIGH COURT, KUMASI
Date: 14 MARCH 1975
MENSA BOISON J
CASES REFERRED TO
(1) Lawrence v. Ambery (1891) L.T.J. 230.
(2) Russel v. East Anglian Railway Co. (1850) 3 Mac. & G. 104; 6 Ry. & Can. Cas. 501; 20 L.J. Ch. 257; 16 L.T. (o.s.) 317; 14 Jur. 1033; 42. E.R. 201.
(3) Dodington v. Hudson (1824) 1 Bing 410; 8 Moore C.P. 510; 130 E.R. 165.
NATURE OF PROCEEDINGS
RULING on an application for leave to issue a writ of attachment against a judgment debtor for contempt in disobedience to an order of court. The facts are sufficiently stated in the ruling.
COUNSEL
Agyepong for the plaintiff.
Asumadu Sakyi for the defendant.
JUDGMENT OF MENSA BOISON J.
This is an application at the instance of the plaintiff judgment creditor (hereafter referred to as the plaintiff) for leave to issue a writ of attachment against the defendant judgment debtor (hereafter referred to as the defendant) for contempt in disobedience to an order of the court to render accounts of proceeds of certain farms to the plaintiff.
The order arises as a result of a judgment of the Kumasi High Court dated 4 March 1963, in an action instituted by the plaintiff on 5 May 1962, whereby the plaintiff claimed against the defendant for a declaration that certain properties were family property, an order of possession and an order for accounts of the proceeds of certain cocoa farms forming part of the aforesaid properties. By its judgment, the trial court made orders for possession of the named properties and in particular for accounts in favour of the plaintiff. On 1 February 1966 the defendant’s appeal to the Supreme Court (now Court of Appeal) was dismissed, but the defendant nevertheless apparently refused to comply with the orders of the trial court in favour of the plaintiff. It was for non-compliance with the orders as given by the trial court that the application for leave to commit for contempt was filed on 2 November 1967.
The hearing of this application first came before me in June 1969, and was characterised by tardy delays and protraction from all sorts of causes and all sorts of devices. In the meantime the defendant on 22 October 1969, filed certain affidavits deposing to the fact that the plaintiff had abdicated as head of the Asona family, and consequently the defendant was not obliged to give possession of the properties ordered or to render accounts thereof to the plaintiff. An issue determined by the trial court was that the head of the Asona family at Abedimisabi, a principality within the Kumawu State, became automatically the Krontihene of Abedimisabi, and as such entitled to possession of the properties in issue. It became necessary as a result of the defendant’s affidavit to refer to the Kumawu Traditional Council for an answer whether Opanin Amankwa Afari, the plaintiff, was the current Krontihene of Abedimisabi, and if not
[p.303] of [1975] 1 GLR 301
who was? In due course, the defendant’s counsel on 30 January 1975, called Mr. Amo Darteh, the registrar of the traditional council, to tender a certified copy of the opinion of the Kumawu Traditional Council as exhibit A. Upon that exhibit A I am satisfied that the plaintiff was not the current Krontihene of Abedimisabi and that one Opanin Kwame Akuoko, enstooled in 1969, and who deposed to an affidavit in support of the defendant’s contention, was the current occupant of the stool and as such the head of family of the Asona family of Abedimisabi.
The disobedience of the defendant if sustained renders the defendant liable to committal for a non-criminal contempt since it is a demand by the plaintiff in aid of his civil claim. The law was stated in Lawrence v. Ambery (1891) 91 L.T.J. 230 thus:
“An order of the court in a civil action or suit creates an obligation upon the parties to whom it applies, the breach of which can be and in general will be punished by the court and in proper cases such punishment may include imprisonment. But it does no more. It does not make such disobedience a criminal action. . .”
(Cited in Vol. 16 at p. 40, para. 339 of the English and Empire Digest (Blue Band ed.)).
The first point of law that in my opinion arises is whether a person can justify the disobedience of a court order on grounds of some good excuse or defence? Was the fact that after the plaintiff had obtained the order against the defendant the plaintiff was replaced in 1969 by Opanyin Kwame Akuoko a good cause for the defendant’s refusal to render accounts to the plaintiff? I think the answer is no. There is authority for it, and it is stated thus:
“it is an established rule of this court that it is not open to any party to question the orders of this court or to question any process issued under the authority of this court by disobedience. I know of no act of this court which may not be questioned in a proper form and on a proper application, but I think it is not competent for any one to interfere with a receiver, to disobey an injunction or to disobey any other order of the Court, on the ground that such orders were improvidently made; they must take a proper course to question them but while they exist they must obey them.”
Per Lord Truro L.C. in Russel v. East Anglian Railway Co. (1850) 42 E. R. 201 at p. 206 –and cited in Vol. 16 at p. 55, para. 513 of the English and Empire Digest (Blue Band ed.). On this statement of the law I hold that the defendant was not justified in refusing to comply with the order to account to the plaintiff. Indeed on the dismissal of his appeal on 1 February 1966, the defendant, if he was so minded, could have obeyed the order before the plaintiff was replaced on the stool in 1969 by Opanyin Kwame Akuoko. The defendant was therefore in contempt but for what follows as the second principle of law.
The instant order was one other than for the payment of money and in such cases no attachment will be directed to issue immediately unless
[p.304] of [1975] 1 GLR 301
the failure to comply was wilful. “All the authorities show that before an attachment can be enforced, the party proceeded against must be proved to have been guilty of a wilful disobedience of the rule, and if that be not fully and satisfactorily made out the court will not interfere.” Per Grifford C.J. in Dodington v. Hudson (1824) 130 E.R. 165 at pp. 165-166 (cited in Vol.16, at p. 53, para. 485 of the English and Empire Digest (Blue Band ed.)).
To ground wilful disobedience a personal demand by the plaintiff is absolutely necessary to bring a person (the defendant) into contempt in order to proceed against him by attachment.
“[So where a] defendant was served with a rule of court, requiring him to reinstate premises belonging to plaintiff forthwith, according to an agreement entered into by him to that effect at the trial, [it was] held an attachment could not be issued against the defendant for disobedience of the rule on being merely served with it by plaintiff’s agent, but a personal demand should have been made on him to comply with it in terms at the time of service.”
See Vol. 16, p. 53, para. 485 of the English and Empire Digest (Blue Band ed.).
In his affidavit in support of the application all that the plaintiff averred after refering to the order to render accounts of proceeds from the farms was as follows: “That the defendant has so far not obeyed the court’s order that he renders accounts to the plaintiff. “That does not in any way show there was a demand. In my opinion the failure of an express demand on the defendant to comply with the court order is fatal to this application.
Accordingly I dismiss the application. The bail of the defendant is consequently discharged. There was very little to commend itself in the defendant and in the conduct of this case. Besides the point taken by the court itself being technical I deem it fit to award only nominal costs of ¢21.00 to the defendant.
DECISION
Application dismissed.
S. O.
