Bench warrant against a respondent who fails to appear
As a matter of procedure incidental to contempt proceedings, we say without any equivocation therefore that, the practice where court’s especially trial courts before whom applications for attachment for contempt is pending issue bench warrant for arrest of a Respondent(s) to the application who fails, refuses or neglects to appear, after service of the application, is unlawful as it is unconstitutional in the absence of the specific order by the court directed at the Respondent(s) to physically appear in court in person. Contempt is a substantially civil process and the failure or refusal to attend court on any return date cannot provoke any sanctions. We dare say that, if the Respondent fails, refuses or neglects to appear, the failure refusal or neglect shall not diminish the statutory burden of the Applicant to prove the allegation of contempt beyond reasonable doubt failing which no liability for contempt can be lawfully made by the court.
At common law, the general position is that a party to judicial proceedings together with his agents and assigns, however described, must refrain from any conduct that may potentially and unfairly prejudge or prejudice the hearing or outcome of a matter pending before a court of law, provided he or she is aware of such pendency of the proceedings. Thus, when an application for an interlocutory injunction is pending before a court, the party against whom the interlocutory order is sought, if served with the application, is ordinarily enjoined from proceeding with the conduct or activity in question, whether the injunction sought is mandatory or prohibitory in nature.
contempt may arise where a party 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. 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. In effect, the state of affairs before the court was seized with the matter must be preserved until the court delivers its judgment. This is so whether or not the court has granted an order to preserve the status quo or not. A party to the proceedings will be in contempt if he engages in an act, subsequent to the filing of the case, which will have the effect of interfering with the fair trial of the case or undermine the administration of justice. The conduct must be one which has the effect of prejudging or prejudicing the case even before a judgment is given.
Having so observed, whether the contemptuous conduct is brought to the attention of the court through a formal application or otherwise, there is one indispensable requirement which if violated would render the entire proceedings a nullity. That is, the evidence that, the alleged contemnor had first been ordered to appear and show cause if he is responsible for the alleged contemptuous conduct to enable him to defend himself. It should be noted that, in quasi criminal proceedings, an alleged contemnor is entitled to all the requirements of fair hearing as established by the common law courts, and entrenched in the 1992 Constitution. In particular, and within our constitutional tenets under Article 19 of the 1992 Constitution, there is the constitutional requirement that the process must be fair.
judges must note that, while the court should not allow itself to be scandalised, exposed to ridicule and belittled unjustifiably, the jurisdiction of the court to punish for contempt has been created and maintained for the preservation, enhancement of the honour and dignity of the court and not for personal aggrandisement of the judge. This jurisdiction or power should be used sparingly and within the ambit of the rule of law and undergirded by due process. Without these, every order made by a court may be a resultant nullity and void. No court must hesitate in pronouncing any order, ruling, judgment or proceeding conducted without due process as a consequential nullity.
We must state without any equivocation however that, the balance between the exercise of the court’s coercive power to suo motu conduct proceedings to commit or attach for contempt demands due process. This requires judicial sobriety by not suggesting in any judicial expression or conduct prejudicial and predetermined presumption of guilt resulting in a situation of real likelihood or actual bias which beclouds the sense of the justice intended to be dispensed. Anything to the contrary would be potentially unconstitutional as it would contravene the provision of Article 19(2) (c) of the 1992 Constitution on the presumption of innocence.
The scope of the offence of contempt of court by conduct, comment, or publication and not necessarily disobedience of the court order is not precise. But generally, it may be described as any conduct which tends to bring into disrespect, scorn or disrepute, the authority and administration of the law or which tends to interfere with and/or prejudice litigants and/or their witnesses in the course of litigation.
Practice direction: procedure where the court cites a person for contempt
Where the court itself, cites a person for contempt, or where the jurisdiction is invoked in the course of pending proceedings and that person is not present in court at the material time and the court, given the circumstances of the allegation intends to ensure the attendance of the alleged contemnor, the court must: a. First, cause to be issued, a summons or order demanding the presence of the alleged contemnor to show cause why he should not be committed for contempt. b. The summons should simply contain a statement demanding appearance before the court to show cause without more. c. Prejudicial statements or words likely to be construed as prejudicial should not accompany the summons to show cause. d. The Registrar of the court, must ensure that, the alleged contemnor is duly served with the summons. e. In the event that, the alleged contemnor is duly served, yet refuses to appear before the court, then, the court may decide to issue an arrest warrant. Even at this stage, the court must assess all the circumstances of the case impartially and first determine whether, the default in appearing was not occasioned by any special circumstance, which made it impossible for the alleged contemnor to appear, and the exercise must be guided by the principles of fairness especially as defined under Article 296 of the 1992 Constitution.
This involves situations where the Respondent to an application has vehemently denied the alleged contemptuous conduct by affidavit in opposition thereby joining issues on the facts before the court. In spite of this situation, instead of directing the cross-examination of the deponents to affidavits in order to resolve the conflict in the respective affidavits, the High Courts have developed this practice of directing written submissions to be filed when factual conflicts in affidavits have not been resolved and no admissions for the allegations are apparent on the face of the affidavit in opposition. How the Trial Court is able to determine whether or not the statutory burden of proof has been discharged by the affidavit evidence exclusively in the absence of oral examination is mysterious to say the least. And inspite of the conflicts in affidavits, some trial High Courts are able to make a finding of liability for contempt which requires proof beyond a reasonable doubt.
In our view, just as in a formal application for contempt where the alleged contemnor is served with an application to enable him defend himself, where the court cites another for being in contempt, the court is under a mandatory duty to bring the fact of the allegation to the attention of the alleged contemnor. Procedurally, the court is expected to issue a summons or order requiring the attendance of the alleged contemnor as was the procedure applied in the Montie 3 case (supra). We do not think that, the court has the option to side-step the issuance of a summons or an order to appear and rather sanction a warrant for the arrest of a person, who, has not in the first instance, demonstrated any intention to appear before the court.
As has been demonstrated, Ghana, just like other common law jurisdictions have legislated the appropriate procedure to compelling attendance in a civil, criminal or quasi-criminal proceeding to be, in the first instance, the issuance of a summons to appear, and upon breach, a consideration for a warrant for the arrest of the subject of the order. Ignoring the liberty of the individual, and commanding his arrest, in our view offends the constitutional requirements for fair hearing and due process of law.
From the authorities considered, it seems well settled that the general rule that a person in contempt of court cannot be heard until the contempt was purged as derived from ancient canon law has outlived any inflexible application granted it was ever absolute and universal.
