BAAH vs. BAAH AND ANOTHER [1973] 2 GLR 8

CASES REFERRED TO

(1) Narh v. Dombo, Court of Appeal, 23 March 1970, unreported; digested in (1970) C.C. 64.

(2) Heatons Transport (St. Helens) Ltd. v. Transport and General Workers Union [1972] 3 W.L.R. 73;

[1972] 2 All E.R. 1214, C.A.; reversed in [1973] A.C. 15; [1972] 3 W.L.R. 431; [1972] 3 All E.R.

101 H.L.

NATURE OF PROCEEDINGS

APPLICATION for an order for attachment for contempt of court. The facts are fully stated in the ruling of Annan J.A. sitting as an additional judge of the High Court.

COUNSEL

W. A. N. Adumua-Bossman for the plaintiff-applicant.

Dr .W. C. Ekow Daniels for the defendants-respondents.

JUDGMENT OF ANNAN J.A.

On 30 June 1972 the plaintiff-applicant Mrs. Baah, took out a writ of summons claiming declarations:

“(1) That she is entitled absolutely and beneficially to one equal half of each and every asset, movable and immovable, standing in the name of her late husband C. C. K. Baah (deceased) at the date of his death;

(2) That she is entitled absolutely and beneficially to one equal half of all the authorised share capital and

profits of each and every one of the companies comprising the Baah Group of Companies;

(3) That the will of the late C. C. K. Baah (deceased) proved by the defendants on 17 February 1972 upon its true construction takes effect only subject to the foregoing declarations;

(4) Such further or other relief as in the circumstances may be just.”

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The gist of the applicant’s case in the substantive suit is her claim that almost “all the immovable property and worldly goods” of herself and her late husband as well as the paid-up share capital, assets and undertaking of the companies run by the late C.C.K. Baah derive “mediately or immediately and wholly from the undistributed profits of a business undertaking jointly sponsored and conducted between 1950 and 1951-52 and subsequent thereto, by husband and wife.”

The applicant therefore contends that she is, and from 1950 has always been entitled in equity to one equal half of all the property standing in the name of Baah and that her late husband was at all material times a trustee of such half share for her benefit. Consequently the applicant maintains that the dispositions made in the will of her husband are and always were unlawful or in breach of trust in so far as they went beyond one equal half of all the property.

The defendants (respondents herein) entered appearance to the action on 18 July 1972. A day before then the applicant took out a summons for administration of property under Order 60, r. 40 (1) and (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). In that application she asked that the undermentioned sums of money be paid to her namely:

(1) All the arrears of rent from 1 January 1972 to 30 June 1972 purporting to be devised to the plaintiff-applicant under clause 3 page 2 of the will and as from 30 June 1972 rents of the said property from month to month or otherwise periodically until judgment or further order herein.

(2) All arrears from January 1972 to 30 June 1972 of the legacy of ¢100.00 per month purporting to be bequeathed to the plaintiff-applicant under clause 14 (a) page 4 of the will and after 30 June from month to month until judgment or further order herein.

(3) The sum of ¢100.00 being the amount of a bearer cheque drawn by Baah and delivered to the plaintiff-applicant but not accepted by the said bearer on its presentation.

In their affidavit in opposition to this application the defendants described this interlocutory application as grossly misconceived. The trial judge in his ruling on the application found that the application “as it stands in its present form is totally misconceived” and that to grant the application will have the effect of ordering the executors to distribute the estate without first paying the just debts of the testator. He found further that “the said debts not having been paid it will be irregular to expect them to pay to the plaintiff-applicant the bequests made to her in the said will.” The trial judge having disposed of the application against the applicant, and if I may say so quite correctly, went on to add the following order to his ruling:

“However since the plaintiff-applicant is the widow of the testator and also a beneficiary under the said will, I will exercise my discretion and order that the defendants do give her some allowance

[p.11] of [1973] 2 GLR 8

for her maintenance pending the administration of the estate. I will therefore order that the defendants as executors, should be responsible for the payment of the house rates, water rate and the electricity bills in connection with the house where the plaintiff-applicant is staying. I further order that pending the distribution of the estates, the defendants as executors, should pay to the plaintiff-applicant the sum of ¢220.00 a month. Whatever amount that will be paid to her in terms of this order should be brought into account by the executors when the time comes for the distribution of the estate. Subject to this order the application is dismissed.”

This was on 31 July 1972. On 15 February 1973 the applicant filed a notice of motion for leave to issue writ of attachment in terms of Order 44, r. 2 of L.N. 140A directed to the executors, the respondents, “for their contempt of the interlocutory order of Abban J. herein dated 31 July 1972.” In her affidavit in support of the motion the applicant states that the order of 31 July 1972 has not at any time been complied with by the executors.

In their affidavit the executors say that the estate is insolvent to the knowledge of the applicant and they have listed various debts to a total of ¢926,138.05 owed to some seventeen companies and other bodies. Apart from this sizeable indebtedness the estate is also said to owe the former Ghana Educational Trust a total of ¢994,794.33.

As against this state of indebtedness the executors admit a revenue of ¢2,604.34 per month from rents. This amount they use to defray the debts. The executors complain that in spite of the insolvency of the estate the applicant chooses to remain in Sunkwa Lodge, part of the estate. The electricity bill of that property per month is put at about ¢400.00. The house itself contains 22 rooms and eight bathrooms with a garage for four cars. They contend that this property could be let out to bring in more income if the applicant would agree to leave the premises. This she would not do. The companies themselves are being run on overdraft facilities granted from time to time and the estate is heavily mortgaged to various banks.

The executors have for their part instituted an action against the applicant in the High Court for a declaration that the order of Abban J. on 31 July 1972 be set aside on the ground that the same is null and void and of no effect in law whatsoever.

On both affidavits filed by the parties to the contempt matter and also upon the arguments and admissions of counsel before me, there is no dispute that the executors have failed to comply with the order of 31 July 1972. They have done nothing to carry out any part of that order. The simple issue then to be resolved in the present proceedings is whether or not in the particular circumstances of this case the non-compliance of the executors, taken together with all the surrounding circumstances of the case constitute contempt of this court.

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The gravamen of the charge against the executors is that they have disobeyed the order of 31 July 1972. What has to be established then is not mere non-compliance or a failure to abide by the order simpliciter but that the order has been disobeyed.

Disobedience to a judgment or order of the Court for the payment of money to any person or into court constitutes contempt of court for which the sanction is attachment under Order 44, r. 2 of L.N. 140A: see The Annual Practice 1964, p. 1074. It seems to me that the essence of disobedience is a refusal to honour the order of the court rather than mere failure so to do. The distinction seems to me to lie in the one case in an intentional unwillingness to do what the court has ordered to be done even though one is able so to do and in the other case inability to comply with the order even if one wants so to do. It seems to me that intention and ability are relevant matters for consideration in this type of contempt unlike other cases of contempt such as the case of acts or conduct likely to prejudice a fair trial or to interfere with the due administration of justice such as the case of Narh v. Dombo, Court of Appeal, 23 March 1970, unreported; digested in (1970) C.C. 64 which exemplifies the type of contempt based upon interference with the due administration of justice.

In Heatons Transport (St. Helens) Ltd. v. Transport and General Workers Union [1972] 2 All E.R. 1214, C.A., Lord Denning M.R. said at p. 1247: “Disobedience to the orders of the court is an offence of a criminal character. . . . The disobedience must, therefore, be a conscious disobedience to the order of the court or at any rate, turning a blind eye to it.” Where the act alleged is failure to pay money to a person then conscious disobedience in that regard must in my view amount to an intentional act of refusal or neglect to pay in spite of proved ability to pay. Where therefore the case is not made out that a party alleged to be in contempt for disobedience to an order to pay money has at the time of the application or has had before then the ability to pay and has intentionally refused or neglected to pay then in my view no just cause is made out for attachment to issue.

Turning now to the facts of the present matter the executors say the estate is insolvent. There is, I think, a good case made out that the estate is heavily indebted to various categories of creditors, including the banks. The property is also, I am satisfied, heavily mortgaged.

It is not disputed, however, that there is some income coming into the estate per month. There is also an admission that part of the income has been applied by the executors in rightful discharge of liabilities upon the estate. It seems to me that the executors could have complied with the order of the court if they had been minded so to do. They certainly had funds in their hands at the date probate was granted and subsequent thereto, at monthly intervals, other sums of money accrued to the estate out of which they could have met the order.

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That they have not done so seems to me to derive in part from their disagreement with the order of Abban J.; witness the action they have instituted to set that order aside. Whatever be the merits or demerit of that order, and I make no comment of any description on that matter, that order stands and has not been set aside. It does not on the face of it appear to be void ab initio and effect therefore has to be given to it until it is set aside or otherwise vitiated.

I am satisfied that the executors took it upon themselves to disregard the order for the reason that they thought it was an unreasonable or incorrect order. That course was not open to them and amounts in my view to conscious disobedience of that order. They are accordingly in contempt of the court and I so hold.

With regard to the punishment appropriate to the particular circumstances of this case I think that the disobedience of the executors was due in some part to the substantial degree of ill feeling and bad blood generated in connection with the estate since the testator’s death and between his widow on the one hand and his brother and solicitor on the other. I do not think this state of affairs is healthy and I would not for my part do anything that is likely to worsen the situation. I agree with counsel for the widow that everything should be done to defuse the present situation. For this reason I would order that the executors, the respondents herein, do purge their contempt by a suitably worded written apology to the court, the statement of apology to be lodged within 24 hours from now in the senior registrar’s office. This order is conditional on the executors paying to the widow within the same period the total arrears now outstanding on the order for payment of a personal allowance to her and upon undertaking in writing to make reasonable arrangements for the payment of the rates and bills specified in the order. I award costs of ¢25.00 to the applicant.

DECISION

Order accordingly.

Contemnors to purge their contempt by rendering written apology within 24 hours.

S. E. K.