NENE DUGBARTEY TETTEYGA II AND OTHERS vs. SAPPOR [1973] 2 GLR 277

CASES REFERRED TO

(1) Gordon v. Gordon [1946] P. 99; [1946] 1 All E.R. 247; 115 L.J.P. 39; 174 L.T. 172; 62 T.L.R. 217, C.A.

(2) Hadkinson v. Hadkinson [1952] P. 285; [1952] 2 All E.R. 567; [1952] 2 T.L.R. 416, C.A.

(3) Seaward v. Paterson [1897] 1 Ch. 545; 66 L.J.Ch. 267; 76 L.T. 215; 45 W.R. 610, C.A.

NATURE OF PROCEEDINGS

APPEAL from a decision of the Accra High Court convicting the respondents-appellants of contempt. The facts are sufficiently stated in the judgment of Azu Crabbe C.J.

COUNSEL

A. A. Akainyah for the appellants.

No appearance by or for the respondent.

JUDGMENT OF AZU CRABBE C.J.

On 11 April 1962, the plaintiff-applicant-respondent (hereinafter called the plaintiff), who did not appear at the hearing of this appeal, filed in the High Court, Accra, a writ of summons, entitled E. T. A. Sappor etc. v. Nene D. Tetteyga II etc., in which he claimed against the defendant-respondent-appellant (hereinafter called the defendant): (i) £G300 (¢600.00) damages “for disturbance of and/or interference with the plaintiff’s market, commonly called and known as “Ada-Foah Market,” and (ii) an order of perpetual injunction. Subsequently, the plaintiff made an application to the court for an order of interim injunction to restrain the defendant from interfering with the market, but on 24 April 1962, this application was withdrawn upon the defendant giving an undertaking to keep an account of the proceeds of the market which he had established in rivalry to the plaintiff’s market. On 26 June 1962, the plaintiff repeated his application for an interim injunction upon the following grounds stated in his affidavit (only the relevant grounds are stated):

“(4) That when the application was withdrawn I had hoped that this action would be heard before the commencement of the legal vacation.

(5) That it is quite clear now that this action cannot be heard before October of this year at the very earliest.

(6) That in the meantime the defendant is not only carrying on operation of his own market but has by force and threats prevented people from using the plaintiff’s market so that the said market has been totally abandoned.

(7) That if the defendant is not restrained plaintiff will not only suffer great financial loss but it will be difficult to start again the operation of the plaintiff’s market.

(8) In the circumstances I swear to this affidavit in support of my application for an order of interim injunction herein.”

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The application was heard by Ollennu J. (as he then was) who, on 29 June 1962, made the following order:

“It is hereby ordered that the defendant herein, his agents, servants or workmen be and are hereby restrained from entering upon the land the subject-matter of this suit and from committing any acts calculated to interfere with the operation of plaintiff’s market pending the hearing and final determination of the above-named suit.”

On 19 July 1962 the plaintiff commenced contempt proceedings under Order 44 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), against the defendant and respondents-appellants. The notice of motion was headed “Motion for an order of committal or for leave to issue writ of attachment Order 44,” and in a supporting affidavit, the plaintiff alleged, among other things, the following facts:

“(3) That on the 29th day of June, 1962, this honourable court made an order restraining the defendant, his agents or servants from interfering in any way with the operation of my market.

(4) That on the 5th day of July, 1962, a copy of the order of the court was served on the defendant.

(5) That after service of the order I made arrangement for my market to commence operation after it had been closed for some three (3) months owing to defendant’s forcible interference.

(6) That on the 11th day of July, 1962, which was a market day several persons resorted to the market to sell their wares but they were all forcibly ejected by the defendant and his agents and were diverted to a new market which had been set up by the defendant in rivalry to my own.

(7) That on the 14th day of July, 1962, which was another market day, another attempt was made to hold the market but again the defendant and his agents forcibly ejected all who resorted to my market and directed and diverted them to his own market.

(8) That on both occasions when I protested to the defendant and his agents and drew their attention to the order of the court they shouted that `court injunction or no court injunction’ they would rather die than allow my market to continue operating.

(9) That it is quite clear that the defendant is determined to disregard the order of the court and persist in committing the mischief which the order of the court was intended to prevent.

(10) That in the circumstances I swear to this affidavit in support of my application for an order of committal or for leave to issue writ of attachment for contempt herein.”

The defendant and all the respondents-appellants each filed an affidavit in opposition to the plaintiff’s application. The motion came before

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Jiagge J. (as she then was) who decided to take oral evidence. The plaintiff himself gave evidence and called four witnesses, but apart from the defendant, Nene Dugbartey Tetteyga II, none of the other six respondents-appellants gave evidence to support the facts alleged in his affidavit in opposition to the plaintiff’s application.

It seems to me that the conclusions of facts arrived at by the learned judge are amply justified by the evidence, and I do not think that her findings can be impeached in this court.

Pointing to the heading of the notice of motion which reads “Motion for an order of committal or for leave to issue writ of attachment Order 44,” counsel for the appellants, Mr. A. A. Akainyah, stated that it was a two-pronged motion under Order 44, r. 2 of L.N. 140A and, if I understood his argument aright, he proceeded to argue that it was not clear whether the application was for an order for committal or for an order of attachment for contempt. And to support his allegation that there was confusion at the hearing of the application, counsel referred to the proceedings of the day on which the learned judge took evidence. After writing the title of the case, the learned judge recorded: “Application for leave for order of attachment.” Then counsel for the defendant and the respondents-appellants is recorded as saying: “Mr. Koranteng-Addow⎯states⎯ We can forgo leave with the order for committal. We are ready to show cause.”

There clearly appears, in my view, some confusion of thought in the court below about attachment and committal. In Oswald on Contempt Committal and Attachment (2nd ed.), pp. 88-89, the distinction between these two processes is stated thus:

“The distinction between committal for contempt and attachment for contempt still exists, although for some practical purposes it may be taken to be abolished. The operation of an order for committal is more summary and expeditious (but perhaps more expensive if the officer has to journey after the offender) than that of a writ of attachment. In the case of committal, the person in contempt is taken, wherever he may be, under the order by the tipstaff of the Court and lodged in Holloway Gaol, but in the case of attachment, the writ is executed by the Sheriff’s officer, and only runs into a particular county, enabling the culprit to shift from one bailwick to another, and so evade the Sheriff’s officer; the culprit (when caught) is lodged in the county or other gaol of the place where the writ has been enforced.”

And for the purposes these two processes are used, Oswald again states as follows at p. 99:

“Where contempt involves a public injury or offence, it is criminal in its nature, and the proper remedy is committal⎯but where the contempt involves a private injury only it is not criminal in its nature, and the remedy is either attachment or committal⎯and perhaps more properly committal if the application is against a

[p.281] of [1973] 2 GLR 277 person not a party to the cause in which it is made⎯it being doubtful whether a writ of attachment can issue except in the nature of execution and against a party.”

(The emphasis is mine.)

Before the English Judicature Acts a person was attached for neglecting to do some act ordered to be done, and was committed for doing a prohibited act. But the Acts have practically abolished the distinction between attachment and committal, and either remedy is now available to a party in civil litigation who has obtained an order of the court in his favour. Thus, in Gordon v. Gordon [1946] P. 99, C.A., Lord Greene M.R. said at p. 103:

“Attachment and committal are very technical matters, and as orders for committal or attachment affect the liberty of the subject such rules as exist in relation to them must be strictly obeyed. However disobedient the party against whom the order is directed may be, unless the process of committal and attachment has been carried out strictly in accordance with the rules he is entitled to his freedom. I am not speaking now of contempts in the face of the court, but contempts by disobedience of an order for something to be done outside the court. In the present case the summons or notice of motion before Lynskey, J., asked for committal or attachment. That is a common form nowadays, since both remedies are open in the case of disobedience to an order, whether a prohibitive order for which committal used to be the appropriate remedy, or an affirmative, positive order, for disobedience of which attachment was the remedy. Either remedy is now possible, but there is still a certain procedural difference, and, speaking quite generally, the procedure in the case of attachment is more technical than in the case of committal. Accordingly, when before Lynskey, J., counsel was asked to elect which remedy he sought, feeling no doubt in difficulty with regard to attachment owing to non-compliance with the technical rules relating to attachment, he elected to ask for committal, and committal he obtained.”

And in Hadkinson v. Hadkinson [1952] 2 All E.R. 567, C.A., Romer L.J. said at p. 569:

“. . . anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise.”

The court has jurisdiction to punish for contempt a person, who, though not a party to the action, chooses to assist others in the doing of that which he well knew was prohibited by an order of the court: see Seaward v. Paterson [1897] 1 Ch.D. 545, C.A. Such wilful disobedience to the court’s order by a stranger to the litigation constitutes criminal contempt. The party to the proceedings that results in the restraining order against him commits civil contempt, if he disobeys the order.

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Upon the evidence, the learned judge found the defendant guilty of contempt: this is civil contempt, because he was a party to the proceedings in the substantive action; and the respondents-appellants each guilty of contempt: this is criminal contempt, because each was a stranger to the proceedings in which the order of injunction was made. In this application the applicant prayed for an order that the defendant and the respondents-appellants be committed to prison for their contempt by wilfully disobeying the order dated 29 June 1962, or alternatively for leave to issue writ of attachment for contempt against them. In my view, no exception can be taken to the form of the application, and I am satisfied that the misapprehension of both the learned judge and counsel as to the nature of the application affects neither the proceedings nor the guilt of the defendant and respondents-appellants. Consequently, I reject Mr. Akainyah’s submission that the application was not properly before the court.

The only ground of appeal which Mr. Akainyah appeared to have argued with some confidence is that which alleged as follows:

“The ruling of the learned trial judge is wrong on the ground of illegality because⎯ (a) the contempt alleged in these proceedings being contempt in procedure and not criminal contempt it was wrong and illegal for the learned trial judge to impose a fine on the respondents.

(b) she lost sight of the nature of the matter before her and therefore ‘convicted’ the respondents and `sentenced them to imprisonment with hard labour’ and in the alternative imposed vindictive fines on them and also asked them to give security to be of good behaviour as if they were arraigned before her on a criminal charge.”

Counsel submitted that the application was for attachment in civil proceedings, and therefore, it was wrong for the learned judge to convict. He further submitted that the orders made by the learned judge were those which could be made in criminal contempt. What then are the orders which the court makes, or the sanctions which it imposes, in contempt proceedings? On the hearing of the motion the court may, in making the order for a writ to issue:

(1) Inflict a fine or sentence the offender to a definite term of imprisonment or both,

(2) Sentence the offender to an indefinite term of imprisonment,

(3) Order sureties to be found for good behaviour,

(4) Order the offender to pay the costs of the proceedings,

(5) Impose only a fine and payment of costs.

Where the contemnor is a corporation, the contempt is punished by the sequestration of its property, but the officers of the corporation responsible for the contempt and capable of remedying it may be committed, or the corporation, such officers, or both may be fined and ordered to pay the costs of the proceedings.

[p.283] of [1973] 2 GLR 277 I accept Mr. Akainyah’s argument that this being an application in civil or summary proceedings the learned judge erred in convicting the defendant and the respondents-appellants, for an order of sentence upon conviction can only be made in the case of contempt which is punishable as a misdemeanour by indictment, as for example, contempt by interference with the course of justice: see Oswald on Contempt Committal and Attachment (2nd ed.) at p. 8. I would, therefore, expunge from the order made by the learned judge the words “and I convict each accordingly” and “imprisonment hard labour.” Subject to this amendment, I would dismiss the appeal.

JUDGMENT OF SOWAH J.A.

I agree.

JUDGMENT OF KINGSLEY-NYINAH J.A.

I also agree.

DECISION Appeal dismissed.

Order amended.

S.O.