REPUBLIC vs. AMANDI [2001-2002] 2 GLR 224

CASES REFERRED TO

(1) Effiduase Stool Affairs (No 2), In re; Republic v Numapau, President of the National House of Chiefs; Ex parte

[p.226] of [2001-2002] 2 GLR 224

Ameyaw II (No 2) [1998-99] SCGLR 639.

(2) Republic v Moffat; Ex parte Allotey [1971] 2 GLR 391.

(3) Asare v The Republic; Ex parte Asare, Court of Appeal, 18 May 2000, unreported.

(4) Republic v Buabing II; Ex parte Nana Kuffour I [1992-93] GBR 1663, CA.

(5) Republic v Liberty Press [1968] GLR 123.

(6) Re Bramblevale Ltd [1969] 3 All ER 1062; [1970] Ch 128, CA.

(7) Attorney-General v Butterworth [1962] 3 All ER 326; [1963] 1 QBD 696, CA.

(8) Heaton’s Transport (St Helens) Ltd v Transport and General Workers Union [1973] AC 15; [1972] 3 WLR 431; [1972] 3 All ER 101, HL; reversing [1972] 2 All ER 1214; [1972] 3 WLR 73, CA.

APPEAL against the judgment of the trial court refusing the applicant’s application for the attachment of the respondents for contempt of court. The facts are sufficiently set out in the judgment of Ansah JA.

Andrews Tetteh for Heward-Mills for the appellants.

Ansah JA. Pursuant to leave granted the applicant in the court below, he brought a motion on notice for a writ to issue for the attachment or committal of the respondents.

The basis for the relief sought was that whilst suit number L 400/97 entitled Aluminum Enterprises Ltd v Ghabico Ltd was pending before the High Court, Accra, the respondents wrote or caused some letters to be written to the Minister of Trade and the Attorney-General. The letter dated 2 April 2001 was addressed to the Minister of Trade and was headed “Petition Concerning Mohammed Wolley, Ghabico and Tatcol.” There was also a dossier dated 20 February 2001 entitled “Appeal for Justice through Police investigation,” sent to the Minister of Justice. The third letter was dated 24 April 2001 and was from the Minister of Trade and Industry summoning the applicant for investigations into the subject matter of the suit referred to above. The applicant’s case was that the substance of the letters was contemptuous of the court for they were calculated at prejudicing the fair trial of the

[p.227] of [2001-2002] 2 GLR 224 respondents’ suit before the court. They sought to usurp the jurisdiction of the court, prejudge the suit and draw conclusions that ought to be drawn by the court itself. As a result of those letters, the Minister of Trade had started investigations detrimental and prejudicial to the applicant and on matters that were subject to the jurisdiction of the court.

The respondents denied the allegations made against them. In their affidavit in opposition they maintained that in their letter to the Minister of Trade, they only informed him that the matter was under police investigation. They did not invite him to take any decision or start any line of action into any matter pending before the court. It was the applicant who rather reported the respondent to the police over a matter pending before the court. A ruling by the community tribunal at the close of the case for the prosecution that the accused therein had a case to answer was subsequently reversed on appeal to the Regional Tribunal. Concerning the letter to the Honourable Attorney-General, it was submitted that it only called for police investigations into matters not before the court. The letters were not contemptuous of the court.

The learned trial judge at the end of the trial took the firm view that the letter to the Minister of Trade did not ask the minister to intervene in the civil matter pending before the court. The letters only requested him to pursue the criminal aspects of the civil matter before the court. She therefore refused the application and mulcted the applicants in costs. It is this refusal that has precipitated the present appeal to this court. The relief sought was for the judgment to be reversed. The grounds of appeal were as follows:

“(a) That the learned trial judge erred in law and on the facts in considering that the petitioning of the Honorable Minister of Trade by the first and second respondents including the letter dated 2 April 2001, exhibit MH1, did not amount to a request for an administrative or ministerial investigation of a matter pending before the High Court and was not therefore conduct obstructing or calculated to prejudice the due administrative of justice.

(b) That the learned High Court judge erred in law and on the facts in failing to consider that the summons to an investigation by the Honourable Minister of Trade in the letter dated 24 April 2001 exhibit MH3, was not an

[p.228] of [2001-2002] 2 GLR 224 administrative or ministerial inquiry consequent on the first and second respondents’ allegations and petitions.

(c) That the learned trial Judge erred in law and on the facts in considering that the first and second respondents’ conduct in the circumstances in petitioning the Minister of Trade in exhibit MH and misrepresenting in the petition to the Honourable Attorney-General and Minister for Justice in exhibit MH2 that the respondents had withdrawn all their civil actions in which they were involved with the appellant when in fact none of them had been withdrawn, including the suit on the same subject matter pending before the learned High Court judge, did not amount to contempt of court.

(d) That the order for costs of ¢2 million in favour of the respondents by the learned High Court judge on the dismissal of the appellants’ application was excessive in the circumstances.”

The original ground (2) above has since been substituted in a notice of appeal, by additional ground 3(b), which is as follows:

“(1) That the learned High Court judge erred in law and on the facts in failing to consider that the summons to an investigation by the Honourable Minister of Trade in the letter dated 24 April 2001 exhibit MH3 was for an administrative or ministerial inquiry consequent on the first and second Respondents’ allegations and petitions including exhibit MH3.”

In the first ground of appeal, the appellant complained that the real intention behind the letter to the Honorable Minister of Trade was to provoke an administrative or ministerial action. That letter was written by the first respondent, who the appellant described as a “shrewd schemer,” for himself and on behalf of the second respondent. Counsel for the appellants culled paragraphs (2), (5), (6) and (7) of the letter, exhibit MH1, to buttress his point.

The combined effect of these paragraphs in the letter, according to counsel, was to portray Mohammed Wolley, the managing director of the appellant company as a “fraudulent conspirator” and a criminal who sabotaged the second respondent in his expansion project. He also defrauded the second respondent of his land. It

[p.229] of [2001-2002] 2 GLR 224 was for the purpose of achieving his goal that the respondents made allegations of political intrigues and influence such as appeared in paragraphs (7) and (8) of exhibit MH1. In making all these several allegations of impropriety against the appellant, the respondents failed to mention that the land in question was the subject matter of suit No L 400/97 pending before the court. If the minister has caused an investigation to be conducted into this matter pending before the court, then on the law applicable to contempt of court, the contrary decision by the trial court was wrong. Exhibit MH3 was from the Ministry of Trade and Industry and stated that the director of that ministry, a Mrs H G Woanyah, had been directed to investigate allegations levelled against Mohammed Wolley, Ghabico and Tatcol. The allegations were made by B K Amandi of Aluminium Enterprises Ltd and were in connection with the acquisition of a 4.2 acre plot, the present location of Ghabico on Spintex road. It is very necessary that exhibit MH1 be read to see its real import. When that is done it becomes clear that the author said in part that Mohammed Wolley used fraud to obtain the land on which the Ghabico factory stood, for whereas he said that he paid ¢60 million to B K Amandi to get the land from him, it was found upon investigations that no such payment was ever made to him (Amandi). A production line of a new company formed for the production of biscuits was about to be opened by the Minister of Trade and Industry and exhibit MH1 was written to him to advice him to resist the invitation to be present at the ceremony.

How did the trial judge construe the contents of exhibit MH1? She said that the totality of the petitions did not have any effect on the civil case pending before the court. To the judge all that the petitions did was to pursue the respondents’ constitutional rights by informing the ministers that the criminal aspects of the case are not being prosecuted. They did not otherwise affect the civil matters or any aspects thereof in any way. They did not ask the ministers to interfere with the civil suits at all. She also was of the view that the respondents did not breach any right or interfere with any court process. They did not ask the minister to interfere in the civil matter pending before the court. In the result, the judge found that the respondents did not commit any contempt of court and she refused the application before her.

In support of the first ground of appeal, it was submitted that the

[p.230] of [2001-2002] 2 GLR 224 combined effect of paragraphs (2), (5), (6) and (7) of exhibit MH1 was that Wolley was a fraudulent conspirator and a criminal who set out to sabotage the respondents’ expansion projects and defrauded them of their lands. Secondly, the respondents meant that in trying to achieve their aims, Wolley resorted to the use of political intrigues and influences. Thirdly, in all that he did, the respondents did not disclose that the area of land for Ghabico was the subject matter of a dispute in LS 400/97. The overall effect of these allegations in exhibit MH1 was to cause the minister to conduct an inquiry into the matters contained in exhibit MH1 as was shown in exhibit MH3. It was wrong for the judge to have held otherwise, for exhibit MH1 was contemptuous of the trial court. Concerning ground (2), of the submission in support thereof was that exhibit MH2, the letter to the Minister for Justice and Attorney-General contained an intentional misrepresentation as the respondents’ claim that they had withdrawn all the civil suits from court was factually incorrect.

As stated already, ground (3b) was substituted for the original ground (2). The change or difference between the two grounds was so minimal, indeed, so much so that it could easily be glossed over. The change was only to say that the purpose of exhibit MH3 was to cause the minister to cause an inquiry into the allegations made against Wolley concerning the acquisition of the ‘Ghabico’ plot. The appellant also complained about the quantum of the costs awarded the respondents to the end that it was excessive.

It was submitted in reply that exhibit MH1 meant only to advise the minister not to attend the ceremony to commission the new production line of the factory. Exhibit MH3 was also to enable the minister ascertain the truthfulness or otherwise of the allegations in exhibit MH1. Exhibit MH2 on the other hand was a call for transparent police investigations. The exhibits did not cause any of the recipients to interfere with the administration of justice.

Now, it is settled that contempt of court is constituted by any act or conduct that “tended to bring the authority and administration of the law into disrespect or disregard or to interfere with or prejudice parties, litigants or their witnesses in respect of pending proceedings”: see In re Effiduase Stool Affairs (No 2); Republic v Numapau, President of the National House of Chiefs & Ors; Ex parte Ameyaw II (No 2) [1998-99] SCGLR 639-641 In Republic

[p.231] of [2001-2002] 2 GLR 224 v Moffat; Ex parte Allotey [1971] 2 GLR 391 at 396 Abban J (as he then was), said the same thing. See also Asare v The Republic; Ex parte Asare, Court of Appeal, 18 May 2000, unreported; Republic v Buabing II, Ex parte Nana Kuffour I [1992-93] GBR 1663, CA; Republic v Liberty Press [1968] GLR 123; Re Bramblevale Ltd [1969] 3 All ER 1062, CA and Attorney-General v Butterworth [1962] 3 All ER 326, CA. With these definitions in mind it is important to say that any party who levels a charge of contempt against another must prove the conduct that gave rise to the charge. It is also the law that contempt is quasi criminal in nature and the punishment for that may take various forms including imprisonment. As such, it requires proof beyond reasonable doubt. It was said in Heaton’s Transport (St Helens) Ltd v Transport an General Workers Union [1972] 2 All ER 1214 at 1247, CA by Lord Denning MR that the offence must be proved with the same degree of satisfaction of any offence. The necessary thing for an applicant in contempt proceedings to prove is that the respondent did the act complained of, with intent to disregard, disrespect, or interfere with the parties or their witnesses in respect of pending proceedings. The reason is that contempt of court is not strict offence and requires the existence of the requisite intent to commit it. Therefore, to secure the conviction of an alleged contemnor, the applicant must show the acts or conduct complained of, and equally importantly, that they did or tended to interfere with the parties, witnesses or the course of the administration of justice. It must also be proved beyond reasonable doubt that at all times material the respondents intended to do what has been alleged against them.

The law is that where a publication creates a substantial risk that the course of justice in a legal proceeding in question will be impeded or prejudiced, then that publication is a conduct that will be treated as a contempt of court. But it is not any publication that will amount to a contempt of court especially where the publication was done in good faith. A cue is to be taken from the English Contempt of Court Act, 1981 (c 49). That law provided for the strict liability rule by which is meant that a conduct may be treated as amounting to contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so: see r 1 of the Act. In considering whether a publication amounts to a contempt of court, what must be considered is the

[p.232] of [2001-2002] 2 GLR 224 content and theme of the publication in question. The publication that amounts to a contempt of court is the one that creates a real risk of prejudice to the administration of justice and published with a specific intent of causing such risk. In considering the content of the publication we must not lose sight of the fact that it is within the civic duty of all citizens to do everything to prevent the commission of a crime. It is in the interest of justice that any crime that has been or is about to be committed, must be reported to the authorities and promptly too. Thus in the English Act aforementioned, certain defences are created, one of these being the defence of innocent publication or distribution under section 3(1). It is a defence to a charge of contempt of court.

It is important to consider the contents of the publication as a whole. A careful reading of the publication in exhibit MH1 shows that the writer at the highest made an allegation of fraud against the applicant. Undoubtedly this was a very serious allegation to make about another person. But the important issue is with what intent was this written: was it to the end that the matter pending before the court would be impeded or in any way be interfered with? The learned trial judge held the view that that was not so. We have considered that publication ourselves as well as the criticism by the appellant against this finding by the trail judge and of course, the submission in response and come to the conclusion that the trial judge was justified in her finding. We accordingly affirm it.

Exhibit MH2 did not fare any less. It was a call for a fair investigation by the police into the allegation made against the applicant by the respondent. The applicant did not made it clear how that call prejudiced or tended to prejudice the fair trial of the civil suit before the court. It must be appreciated that anybody who feels or thinks that another has committed a crime should have an uninhibited access to the authorities and also call for a thorough and a fair investigation by the authorities. It is in the supreme interest of justice and the body politic that that was done. Certainly to do otherwise is to sow the seeds for anarchy and chaos in the society, to say the least. It was a monstrous idea that those who make calls and appeals of this nature should be made to face contempt charges later on in the courts. Needless to say, the learned trial judge was right in holding the respondents not liable for the charge against them and we have every reason to uphold her finding and we

[p.233] of [2001-2002] 2 GLR 224 hereby do this by dismissing the appeal on this ground.

By far the most important issue is, did the respondents do anything to interfere with the proceedings before the court? The answer must lie in a comparison between what was put before the court for determination and what the respondents wrote in their letters to the ministers. The reliefs in the suit were:

“(i) An order of specific performance ordering the defendants to transfer the shares to the plaintiff; or in the alternative, (ii) a declaration that the assignment of the plaintiff’s parcel of land on the Tema Motorway Industrial Area and known as plot 136 containing an approximate area of 4.20 acres more or less to the defendants on consideration that has wholly failed is void;

(iii) cancellation of land document registered as No LR;

(iv) recovery of Possession of the said parcel of land; and (v) perpetual injunction restraining the defendants by themselves or by their servants or agents, or otherwise howsoever, from entering upon or having anything to do with the said land.”

In the accompanying statement of claim the respondents averred inter alia, that there was an agreement between themselves and the applicant to transfer half of the shares in the applicants’ company to the respondents in consideration of the respondents assigning their interest in the piece of land described as plot No 136 measuring 4.20 acres. The respondents’ case was that in furtherance of this agreement, the plot of land was transferred to the applicant but they did not transfer the shares to them as agreed upon. That was why they instituted the action in court. The applicant denied ever agreeing to transfer any interest in the land for shares as claimed by the respondent. They only averred that they assigned their leasehold interest in the land for a consideration of cash the sum of ¢60 million.

At the summons for directions, the following were set down for determination by the court, namely:

“1. Whether there was an oral agreement between the plaintiffs and the defendants whereby the plaintiffs were to take 50 percent of the shares in Ghabico in exchange

[p.234] of [2001-2002] 2 GLR 224 for plaintiff’s 4.20 acres of land.

2. Whether any consideration was stated in the original deed of assignment submitted to the Lands Commission for their perusal.

3. Whether any consideration in monetary terms was stated in the deed of assignment submitted to the Lands Commission.

4. Whether Consideration on which the said deed of assignment was made has wholly failed.

5. Any other issue or issues raised on the pleadings.”

From the pleadings and the issues arising there from, it becomes clear that exhibits MH1 and 2 did not tend to prejudge anything in the suit before the court. Neither did they interfere with the proceedings before the court. In the circumstance it could hardly be said that the respondents did commit any contempt of court. This means that the conclusion by the trial judge was faultless and unimpeachable. This court would therefore not interfere with the judgment from the court below. We rather indorse and affirm it and dismiss the appeal on all the grounds proffered.

There was also an appeal against the quantum of costs awarded by the court upon the dismissal of the application. All issues about costs awarded must be considered along the lines that they are entirely within the discretion of the court. To assail costs on appeal, it must be shown that they were awarded against all principles, or that they were manifestly excessive or were ridiculously low or in all circumstances unjust. The appellant was not able to demonstrate in what respect the court below failed to exercise the discretion it had in the matter judicially. We do not find any ourselves. We have no reason to disturb the exercise of the discretion it had in the matter. We also affirm the quantum of cost awarded.

This court in the result affirms the judgment of the court below and dismisses the appeal.

Appeal dismissed.

M A-G