CLELLAND v. ALEXANDRA [1966] GLR 758

Division: HIGH COURT, ACCRA

Date: 24 NOVEMBER 1966

Before: EDUSEI J.

CASE REFERRED TO

United Telephone Co. v. Dale (1884) 25 Ch.D. 778; 53 L.J.Ch. 295; 50 L.T. 85; 32 W.R. 428.

NATURE OF PROCEEDINGS

RULING on an interlocutory application to commit the respondent for contempt of court.

COUNSEL

Quist for the plaintiff.

Acquaah for the defendant.

JUDGMENT OF EDUSEI J.

In the instant proceedings the plaintiff is asking the court to call upon the defendant to show cause why she should not be committed to prison for contempt of court.

On 10 January 1966, the court, on the application of the plaintiff, granted an interim injunction in the following terms:

“It is hereby ordered that the defendant herein, her servants, agents or workmen be and are, hereby restrained from carrying on any work upon the parcel of land in dispute and/or in connection with the building thereon while the rights and entitlements of the parties herein still remain pending and undetermined.” Again on 25 May 1966 the court on the application of the defendant reviewed its order and varied it to enable the defendant “to continue with the building to the extent only that the said building may be saved from collapse or destruction by having doors and windows put in and the septic tank and soak-away duly completed.” I consider this to be the essential part of the order reviewed and I need not refer to the whole order.

Counsel for the applicant has urged upon this court that as a result of the indulgence granted her by the court the defendant did take advantage of it and completed the building and got it ready for habitation, and has in fact let it out to a tenant in the person of one Lamptey. In his opinion, counsel for the plaintiff argued, this constitutes a violation of the court’s orders of 10 January 1966 and 25 May 1966. Mr. Acquaah, on the other hand, sought to show that there was no infringement of either of the two orders. He argued that by the varied order of 25 May 1966 which gave the defendant power to do certain things to the building, the doing of these things actually completed the building for habitation, and that the letting out of the building to a tenant was no contravention of either order.

The essential matter for me to decide is whether the defendant by renting the building did violate either of the two orders. There is nothing before me to ascertain the stage the building had reached [p.760] of [1966] GLR 758 when the court varied its order and permitted the defendant to continue the building with a view to saving it from collapse. It follows therefore that I cannot find against the defendant that by putting in the windows and doors and constructing the septic tank and soak-away, she did complete the building and therefore has violated the court’s order.

I have, however, to interpolate that actual service of a court’s order is not essential on the party alleged to have disobeyed it if it is shown that the party knew or might have known of the order: see United Telephone Co. v. Dale.1 The order of 10 January 1966 was served on the defendant on 27 January 1966, but she applied for a review of the order on 25 May 1966, and as a result of the review completed the house. She cannot be heard to say that she was not aware of the contents of the order of 25 May 1966. The defendant in her affidavit has admitted that the building has been let out to a tenant but alleged that the letting was done by her sister when she, the defendant, was away to Anomabu to attend a funeral. She further stated in the affidavit that she did not know that such an act constituted contempt of court and she was sincerely apologising for it. But the matter did not end there. Her counsel argued that despite what his client had stated in the affidavit by way of apology she was not guilty of contempt for letting out the house to a tenant.

My brother Kingsley-Nyinah J. in granting the application for review on 25 May 1966 had this to say: “I am satisfied that sufficient justification has been shown to warrant a review of my order but certainly not a complete discharge thereof since the latter course of action would, to a very great extent, defeat the object and purpose of the substantive suit.”

In reading the orders of 10 January 1966 and 25 May 1966 together I have no doubt in my mind that the whole purpose of the interim injunction was to preserve the status quo until the final determination of the suit. At the time of the first order of 10 January 1966, there was no tenant in the house; at the time also of the review of 25 May 1966 there was no tenant in the house either. A common-sense interpretation of the two orders clearly shows that there has been a breach of the order of 10 January 1966.

I also hold that the act of the defendant’s sister is the act of the defendant herself since I can correctly say that she was acting as her agent. In Oswald’s Contempt of Court (3rd ed.), p. 107 it is [p.761] of [1966] GLR 758 stated thus: “Generally a party is liable for his servants’ or agents’ disobedience to an order of the court if he is privy, or may reasonably be taken to be privy to it.” I have no doubt in my mind that even if the defendant was not privy to the disobedience of the order I say that she may reasonably be taken to be privy to it. According to her own affidavit and argument by counsel, the building was completed for habitation by the defendant after the application for review was granted; there is nothing before me to show that the defendant on leaving for Anomabu for a funeral, instructed her sister not to let out the house because an interim injunction has been placed on it; she did not say that being the owner of the house she has received no rents from her sister or tenant and lastly there is no affidavit from her sister to support her in certain material particulars. She conveniently kept silent about these matters thinking that she could seek shelter behind her sister.

In the result I find that there has been wilful disobedience to the court’s order of 10 January 1966, and I call upon the defendant to show cause why I should not deal with her according to law. I take a very serious view of matters of this nature. Court orders are meant to be obeyed and any flagrant and wilful disobedience to such orders by parties to a suit must be viewed with abhorrence and adequate punishment meted out to the offender. I have however, taken into consideration the plea of learned counsel in mitigation, and will impose a fine of ¢72 upon the defendant.

I shall also exercise the inherent jurisdiction reposed in this court to appoint the senior High Court registrar as manager and receiver to whom all rents from the house situated on the land in dispute be paid until final determination of the suit. The manager will be entitled to his usual ten per cent remuneration from the rents collected. I further order that all rates and taxes pertaining to the house should be paid from the rents to be collected by the manager and receiver.

The defendant is given up to Monday 28 November 1966 to pay the fine of ¢72. The defendant should pay the costs of this contempt proceeding and this is assessed at ¢28.

DECISION

Application granted.

Defendant fined.

E. D. K.