KOSE AND ANOTHER vs. ACQUAH AND OTHERS [1999-2000] 1 GLR 509

NATURE OF PROCEEDINGS

APPLICATION by the plaintiff-applicants, children and executors of the testator, for an order attaching the respondents, the customary successor and two members of the testator’s family, for contempt for intermeddling with the properties of the testator in breach of the orders of the court. The facts are sufficiently stated in the ruling of the court.

COUNSEL

Kojo Anan for the plaintiff-applicants.

Brookman-Amissah for the defendant-respondents.

JUDGMENT OF AKOTO-BAMFO J.

In this application the plaintiff-applicants (hereinafter referred to as the applicants) pray for an order attaching the bodies of the defendant-respondents (hereinafter referred to as the respondents) for disobeying various orders made by the court since December 1991.

It is, in my view, necessary to give a resume of the events leading to the present application. On 19 September 1991 the applicants took out a writ of summons claiming for: (1) an order that the first

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and second respondents hand over keys belonging to their deceased father to them for inventory to be taken; (2) an order that the third respondent hand over cattle in his possession to the applicants for distribution; and (3) an order restraining the respondents from interfering with the administration of the estate.

The gist of the case for the applicants as per their statement of claim is that their late father, Kweku Ghansah, died testate; his children, the applicants, were appointed executors. The defendants styling themselves as customary successors had, however, prevented them from administering the estate. In their defence, as per their statement of defence, the respondents contended that the will was not valid and furthermore, that since the properties listed in the inventory were family properties, the late Kweku Ghansah could not validly dispose of them in a will.

On 12 December 1991, upon the applicants’ motion, the court made an order directing that the first and second respondents should hand over the keys to the applicants for them to take inventory and for the third respondent to hand over the cattle in his possession. Upon a subsequent application for review by the respondents, the court on 23 June 1992 made an order directing the registrar of the court to go with the parties to take inventory of all the properties and to file a report. The registrar complied with the orders and subsequently filed a report. The court thereafter on 9 December 1992 ordered the respondents not to intermeddle with the properties listed in the report submitted by the registrar on 23 June 1992.

Learned counsel for the applicants submitted that various orders made by the court since December 1991, after the grant of probate to them, had been disobeyed by the respondents whose main contention was that wills were alien to their family. According to him, the respondents had committed various acts of disobedience in that in 1993 when the first applicant entered the room of the testator to pack some things, he was forcibly removed by the respondents and the door locked. He submitted that the fact that Esi Rigya who styled herself as customary successor had commenced proceedings at the High Court, Cape Coast did not entitle the respondents to flout the orders made by the court. Additionally, he urged that the second respondent had erected structures in the yard of the testator and was using same as a school without payment of rents to the administrators.

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In opposing the application, learned counsel for the respondents contended that the application was brought in bad faith. According to him, after the order of 12 December 1991 which directed that the keys be handed over to the applicants for inventory to be taken, an application for review was considered by the court and that the court on 23 June 1992 reviewed the earlier order made. The registrar was appointed to take inventory and to submit a report. He, therefore, submitted that the order of 12 December 1991 ceased to operate. He argued that since the only subsisting order was the order of 9 December 1992, and no acts constituting intermeddling had since been committed by the respondents, the application was misconceived. According to him, it was Esi Rigya who had the applicants removed, and with her death, no other person ought to be held liable. With regard to the school, he submitted that the testator, while alive, allowed the second respondent to put up the structure and to run the school and he cannot therefore be said to have flouted orders subsequently made.

An injunction is an authoritative form of order made by the court expressly enjoining a party either to do a particular act or to refrain from doing a particular act. The general rule is that it is the duty of those so enjoined strictly to observe the terms of the injunction. The court will punish a person for contempt upon adequate proof that the terms of the injunction are clear and unambiguous; that the respondents had had proper notice of such terms; and that the terms have been broken by the respondents. There is also a requirement of proof that the person had the requisite intent for the breach, and finally, the person responsible for the breach has to be established. It is necessary therefore to establish clearly the orders made by the court the breach of which is the subject of the applicants’ complaint.

It is not controverted that on 11 December 1991 the court made an order directing the first and second respondents to hand over the keys to the applicants in order to take inventory, and for the third respondent to hand over the cattle in his possession for distribution. It is also not in dispute that subsequently the respondents filed an application for a review of the orders of the 11 December 1991. Even though learned counsel for the applicants contended that the orders were not reviewed but that further orders were made, it is clear from the evidence on the record that the court on 23 June 1992 considered the application for review and made an order appointing the registrar

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to take inventory and to submit a report. If by the earlier order the applicants were to take inventory and the latter order enjoined the registrar to take such inventory; it is my considered view that the order of 23 June 1992 constituted a variation of the orders made on 11 December 1991. It is of significance that the registrar did take inventory of the properties in the house as well as the cattle. Since the order of 23 June 1992 did vary the order of 11 December 1991, the latter ceased to have any effect. The respondents cannot therefore be said to have committed a breach of a non-existent order. There is ample evidence before me that after the submission of the report, the court made an order on 9 December 1992 directing the respondents not to intermeddle with the properties listed in the report. This order is the only one to be considered by the court in determining whether there has been a breach. The order is clear and unambiguous that the respondents were not to intermeddle with the properties listed in the report. Among the properties listed were the house of the testator and his personal belongings. Para (2) of the report headed “Properties” had family house No F6 listed. The cattle was also included.

Have the terms of the order been broken by the respondents? It is the case for the applicants that the first applicant entered the room of the testator and packed certain things but the respondents forcibly removed him and locked the door and that the second respondent had built structures in the yard of the house of the testator and was using same as a school without paying rents to the administrators. In answer, the respondents contended that it was Esi Rigya who was the culprit and that the second respondent built the structures in the lifetime of the testator and with Esi Rigya dead, the acts complained of having occurred since eleven months before the filing of the application, they could not be held responsible for her actions.

Contempt of court being an offence of a criminal character, it must be satisfactorily proved. There must therefore be cogent evidence incriminating the respondent. There must not be any room for doubts. The averments of the respondents that it was Esi Rigya who caused the room to be locked is not denied. It is indeed not clear from the averments of the applicants which of the three respondents did lock the door; the third respondent, for instance, was said to be in charge of the cattle. Was he in the house at the relevant time? Did he take part in the acts complained of? These are questions which cannot be answered on the evidence before me. It is possible

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that he was present and took part; it is also possible that all the three took part; and it is also possible that only one of them committed the act. Since the standard of proof is high it cannot be said that the applicants have proved beyond reasonable doubt that the respondents committed the act.

Furthermore, the registrar was emphatic in her report that she saw the structures complained of when she visited the premises and at a time the order had not been made. The assertion of the second respondent that he had the consent and authority of the testator in his lifetime to put up the structures is not controverted. If the structures were standing before the orders were made, it is my view that it cannot be said that there had been subsequent acts of intermeddling in respect of the structures.

I am unable to find on the evidence before me that the respondents are guilty of contempt. The application is accordingly dismissed.

DECISION Application dismissed.

SA