DENNISLAW [2021]DLCA10830

THE REPUBLIC

vs.

KWAME AGYEMANG BUDU AND 11 OTHERS; EX PARTE, COUNTY

HOSPITAL LTD.

(RESPONDENTS/APPELLANT)

[COURT OF APPEAL, KUMASI]

CIVIL APPEAL NO.: H1/38/2021 DATE: 24TH

JUNE, 2021

COUNSEL:

KWASI AFRIFA FOR THE APPLICANT/APPELLANT

JEMIMA IRRE ARYERE FOR THE RESPONDENTS/RESPONDENTS.

CORAM:

ANGELINA M. DOMAKYAAREH (MRS.) J A (PRESIDING), ALEX B. POKU-

ACHEAMPONG J A, SAMUEL K. A. ASIEDU J A

JUDGMENT

DOMAKYAAREH (MRS.), JA:

[1] This is an appeal against the judgment of the High court, Kumasi dated 8
July, 2020 in a Contempt Application. In the substantive case, the Appellant
herein brought an action against the Electricity Company of Ghana Ltd.
(ECG), Kumasi on 4 August, 2016. The Appellant claimed the following reliefs
endorsed on the Writ of Summons, namely: -

a) A declaration that the demand by the Defendant for the Plaintiff to

pay an amount of GH¢100,000.00 as electricity bill for the period of January -
June 2016 is wrongful, unlawful, arbitrary and ought to be curtailed by the
Honourable Court.

b) A declaration that the multiple disconnections of electricity supply by

defendant at the plaintiff’s premises in the face of a pending complaint before
the Public Utilities Regulatory Commission is unlawful, illegal and infringes
the law.

c) General, special, punitive and exemplary damages for the Defendant’s

unjustified and illegal conduct.

d) An order of injunction restraining the Defendant, its agents, privies,

representatives, assigns, workmen, technicians and other persons aligned to it
in every manner whatsoever from in any manner threatening or actually
seeking to curtail electricity supply to the Plaintiff by reason of the said
arbitrary and unjustified demand and from making any further demand for
the payment of the said amount by the Plaintiff.

e) SUCH FURTHER ORDER(S) as the Honourable Court may deem fit.

[2] During the pendency of the matter, the Appellant herein who was the
representative of the Plaintiff in the substantive suit, filed an Ex parte
application on 9 August, 2016 for an order of Interim Injunction to restrain the
ECG from cutting/withholding electricity supply to the Appellants’ facility
during the pendency of the suit. This application was granted by the trial
court on 30 November, 2016 in these terms: “I therefore grant the application
for interim injunction against the defendant restraining the latter from
cutting electricity to the Plaintiff’ Hospital.

Order accordingly.” See page 11 of the Record of Appeal.

The Order for the Interlocutory Injunction was subsequently drawn up on 1

December, 2016 in these terms: -

“…

IT IS HEREBY ORDERED that the defendant be and is hereby restrained

from cutting/ withholding electricity to the Plaintiff’s facility. No order as
to costs.

Order accordingly.” See page 8 of the Record of Appeal.

[3] The proximate antecedent to this appeal is that the Appellant herein filed a
Motion on Notice on 14 February, 2020 praying the trial court for an Oder to
commit the Respondents for Contempt of Court. According to the Appellant,
the 1 to 10 Respondents are all Members of the Board of Directors of the
Electricity Company of Ghana Ltd. while the 11th and 12 Respondents are
officers of the ECG. The Appellant prayed the court to commit the
Respondents for Contempt of Court for bringing the administration of Justice
into disrepute for disregarding the Order of injunction by disconnecting the
electricity supply to the premises of the Appellant on 6 November, 2019 and
again on 20 January, 2020 when the business premises of the Appellant were
disconnected plunging the business into chaos and endangering the lives of
patients who were on admission or were present at the premises for treatment
at that particular time. The Respondents however denied that the 10
Respondent was also a Board Member of ECG. The 11 Respondent was the
Head of Legal and Corporate Services of the ECG while the 12 Respondent
was the Area Manager in charge of Kumasi Central Ashanti Regional Strategic
Business Unit of the ECG. Counsel for the Appellant also sought an Oder to
Surcharge the Respondents with the costs occasioned the Appellant by reason
of the “ Respondents’ blatant illegality” including legal costs.

[4] After considering all the processes filed in the Application, i.e. the
Affidavit in Support, the Affidavit in Opposition, a Supplementary Affidavit
in Support, as well the Written Addresses on behalf of the Respective parties,
in Support, as well the Written Addresses on behalf of the Respective parties,
the trial judge delivered his judgment on 26 May, 2020 in which he held that
the Respondents were not guilty of Contempt of Court because the Appellant
woefully failed to discharge the burden imposed on him to prove his case
beyond reasonable doubt. The trial Court also awarded costs of GH¢2,000.00
in favour of each of the Respondents with the exception of the 10 Respondent
who was awarded costs of GH¢5,000.00 making a total of GH¢27,000.00.

[5] It is against this judgment that the instant appeal has been launched on
basically six grounds of appeal since no additional grounds of appeal have
been filed even though the Appellant did indicate in his Notice of Appeal that
additional grounds may be filed upon receipt of a certified copy of the Ruling.
The grounds of appeal are: -

a. The costs of GH¢27,000.00. awarded against the Applicant/Appellant

is harsh, excessive and out of all proportion particularly when the
Applicant/Appellant’s application was seeking to protect the dignity and
honour of the Honourable Court and its processes thereby occasioning a
substantial miscarriage of Justice to the Applicant/Appellant.

b. The Honourable Court erred in holding that the absence of personal

service of the injunction on the Respondents/Respondents meant that they
cannot be in contempt.

c. The Honourable Court erred in holding that the contemptuous acts

were committed at a time the substantive suit had been struck out and
therefore contempt cannot be committed in the circumstances.

d. The Ruling is against the weight of affidavit evidence before the

Honourable Court.

e. The Honourable Court erred in adjudicating a contempt matter in the

absence of the 1 – 11Respondents who never appeared before the Honourable
Court and who were absent even when the Ruling was being given.

f. The Honourable Court erred in basing itself on an affidavit filed

jointly by the 1 – 9 and 11 Respondents contrary to settled practice in
contempt applications requiring separate affidavits by each Respondent.

g. Additional grounds may be filed upon receipt of a certified copy of

the Ruling.

The Appellant is seeking from this court, an order setting aside the Ruling of
the High Court as well as the costs of GH¢27,000.00 awarded against the
Appellant and a further order committing the Respondents for Contempt of
Court.

[6] Since this appeal emanates from a contempt application, it is apposite to

elucidate briefly, on the law on contempt of court as a prelude to considering
the grounds of appeal filed herein. Contempt of court has been defined by the
Supreme Court in the case of IN RE EFFIDUASE STOOL AFFAIRS (NO.2);
REPUBLIC V. NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF
CHIEFS and Others; EX PARTE AMEYAW II (NO. 2) [1998 – 1999] SCGLR
639 at 641 as: “any act or conduct that tends 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. … Civil contempts were those quasi-contempts consisting in
failure to do something which the party was ordered by the court to do for
the benefit or advantage of another party to the proceedings; while criminal
contempt were acts done in respect of the court or its process, or which
obstructed the administration of justice or tend to bring the court into
disrespect.”

In the same case, Atuguba JSC posited thus at page 676: - “I would also
remark that contempt of court is treated practically according to the same
rules as are applicable to ordinary crimes because of its penal character. It is
therefore necessary to formulate the charges or allegations with
particularity so as to give a fair notice of same to the defendant to enable
him prepare to meet them.” Needless to say that contempt of court requires
proof beyond reasonable doubt. In the unreported Court of Appeal Civil
Appeal No: THE REPUBLIC VRS. ESSASOHENE NANA BOAKYE
AGYEMAN; EX PARTE KWAKU NSIA, Civil Appeal No. H1/55/2014 dated
29 February, 2016, Ayebi J A posited as follows at page 6 of the judgment: -

“In Re Effiduase Stool Affairs (No.2); Republic vrs Numapau, President of

the National House of Chiefs and Others; Ex parte Ameyaw No.2 [1998/99]
SCGLR 639 at holding (2), the court held that:

“Since contempt of court was quasi-criminal and the punishment for it

might include a fine or imprisonment, the standard of proof required was
proof beyond reasonable doubt. An applicant must, therefore, first make
out a prima facie case of contempt before the court could consider the
defences put upon by the respondents”.

[7] According to the authorities, there are four prerequisites to be satisfied

before one can bring a successful application for contempt of court. These are:
(i) there must be a judgment or order requiring the contemnor to do or abstain
from doing something; (ii) it must be shown that the contemnor knows what
precisely he is expected to do or abstain from doing; (iii) it must be shown
that he failed to comply with the terms of the judgment or order and (iv) that
his disobedience is wilful. See REPUBLIC V SITO I EX PARTE FORDJOUR
[2001 – 2002] SCGLR 322; and REPUBLIC V HIGH COURT, ACCRA; EX
PARTE LARYEA MENSAH [1998 – 1999] SCGLR 360 at 368. Also see Order
43 (5) of CI 47 which deals with Enforcement of judgment to do or abstain
from doing an act. Order 43 (5)(1)(cc) of CI 47 provides that where it is a body
corporate that has disobeyed a court order or judgment, an order of committal
is to be taken against any director or other officer. Also see Order 43 (7) of C I
47 which deals with Service of copy of judgment before enforcement under
rule 5. Order 43 (7)(3)(a) of C I 47 provides that “(3) Subject as stated, an
order requiring a body corporate to do or abstain from doing an act shall
not be enforced as provided in rule 5 subrule (1) paragraph (bb) or (cc)
unless

(a) a copy of the order has also been served personally on the officer against
whose property leave is sought to issue a writ of sequestration or against
whom an order of committal is sought” (emphasis added)

Consideration of the grounds of appeal:

We now consider the grounds of appeal, mindful of the fact that every appeal
is by way of rehearing as directed by Rule 8(1) of C I 19 and a whole host of
authorities from the highest court of the land. This principle is so trite and so
well known that only one authority will suffice. See KORANTENG II V.
KLU [1993 – 94] 1 GLR 280 SC;

Ground a.

The costs of GH¢27,000.00 awarded against the Applicant/Appellant is

harsh, excessive and out of all proportion particularly when the
Applicant/Appellant’s application was seeking to protect the dignity and
honour of the Honourable Court and its processes thereby occasioning a
substantial miscarriage of Justice to the Applicant/Appellant.

[8] This ground of appeal has flirted dangerously close to Rule 8(5) of the
Court of appeal Rules, 1997, C I 19, which admonishes that: -

“5) The grounds of appeal shall set out concisely and under distinct heads
the grounds upon which the appellant intends to rely at the hearing of the
appeal without any argument or narrative and shall be numbered
consecutively.” (Emphasis added)

Even though this first ground of appeal encompasses a considerable amount

of prohibited narrative, in the exercise of our discretion, we have decided to
admit it for consideration because the first part succinctly captures the ground
of appeal. Taking a cue from the Supreme Court case of THE REPUBLIC V.
HIGH COURT, ACCRA; EX PARTE ANYAN (PLATINUM HOLDINGS
INTERESTED PARTY) [2009] SCGLR 255 at 259, where the Apex Court
altered the defective heading of an application for certiorari which reflected
the substance of the application, we have rephrased this ground of appeal as
The costs of GH¢27,000.00 awarded against the Applicant/Appellant is
harsh, excessive and out of all proportion to enable us see our way clear to
deal with the ground of appeal.

[9] Barraging this court with a host of authorities, Counsel for the Appellant
contended that the award of costs of GH¢27,000.00 against the Appellant
upon a dismissal of a motion to preserve the dignity and honour of the
Honourable Court is manifestly excessive and cannot be justified. Counsel
submitted that this is more so because the 1 – 9 filed a common affidavit
while the 10 Respondent filed no process at all and was not represented at the
trial and that the hearing of the application was only for a day at a time
COVID-19 was prevalent and therefore the court ordered both counsel to file
their written Addresses. We must say that at the hearing of this Appeal on 28
April 2021, Counsel for the other Respondents filed a Notice of
Representation as counsel for the 10 Respondent on the same day.

[10] At page 81 of the Record of Appeal, the Respondents deposed at

paragraph 3 of their Affidavit in Opposition to the Motion for Contempt that
the 10 Respondent was neither a member of the Board of Directors of ECG nor
an Officer of ECG save that they knew that the 10 Respondent works with the
Millennium Development Authority (MIDA). Counsel for the Appellant
submitted that the said paragraph 3 which was repeated in paragraph 4 of the
Affidavit in Opposition of the 11 Respondent at page 132 of the Record of
Appeal and as paragraph 4 of the Affidavit in Opposition of the 12
Respondent at page 19 of the Record of Appeal is a deliberate falsehood
which is contemptuous of the court and as such, the award of costs in favour
of persons who have told blatant untruth is contrary to basic principles of law
and undermines the existence of the court. Counsel relied on the case of THE
REPUBLIC V. ACQUAH & ANOR; EX PARTE PERKO II [2003 – 2005] 1
GLR 135 H 2 where the court held that: “Any party who stated a deliberate
falsehood in a calculated attempt to interfere with the due course of justice
or to impair the administration of justice was in contempt of court.”

[11] The trial judge made reference to the publication of the substituted
service in the Daily Graphic News Paper as one of the considerations for the
costs he awarded. This is what the trial judge said at page 19 of his judgment
which can be found at page 293 of the Record of Appeal: -

“Having procured the services of counsel, coupled with the nature and
circumstances surrounding the instant application, which include the
publication of the instant application in the Daily Graphic newspaper by
way of substituted service and the fact that the respondents’ counsel had to
travel from Accra, I am minded to award costs of GH¢2,000.00 in favour of
each of the Respondents except the 10 Respondent. Further, even though,
the 10 respondent did not file any process, his name was published in the
Daily Graphic as one of the contemnors by the applicant herein, It however
turned out that the 10 Respondent was not a member of the Board of
Directors. This could have been avoided, if the Applicant had done due
diligence in ascertaining whether the 10 Respondent was a member of the
Respondent’s Company’s Board of Directors. In the circumstances, I will
further award costs of GH¢5,000.00 in favour of the 10 Respondent. …”

Counsel referred to the above statement by the trial judge and submitted that
by the reasoning of the court, it is as if the compliance by the Appellant with
the court’s own order for substituted service was an offence for which costs
against the Appellant had to be enhanced. Counsel again bombarded the
court with authorities on the principles of law that even though the award of
costs is an exercise of discretion by the court, yet where the exercise of the
discretion is not based on sound principles of law, an appellate court is
entitled to interfere with such exercise of discretion. Some of the cases relied
on by counsel for the appellant are: -

REAL ESTATE DEVELOPERS LTD VRS FOSUA AND ANOTHER [1984 –

86] 2 GLR 334 at 336 H5 C A; OWUSU V. OWUSU ANSAH [2007 – 2008] 2
SCGLR 870 at 871 H2; POUNTNEY V. DOEGAH [1987 – 88] 1 GLR 111 at
116 C A; BLUNT V. BLUNT[1943] AC 517 at 518; SAPPOR V. WIGATAP
LTD. [2007 – 2008] SCGLR 676 at 679; NKRUMAH V. SERWAH [1984 – 86]
GLR 190; BALMOOS V. MENSAH [1984 – 86] 1 GLR 725 AND
KYENKYENHENE V ADU [2003 – 2004] 1 SCGLR 142.

[12] In respect of the 10 Respondent, Counsel for the Appellant submitted that
despite the denial by the Respondents, he was also a member of the ECG
Board and that no evidence was put before the trial court to show that he was
not a Board member. Counsel exhibited excerpts of the 2020 Diary of the ECG,
which captured the 10 Respondent as a Board member.

In response, Counsel for the Respondents raised a preliminary legal objection

to the attachment of excerpts of the 2020 Diary of the ECG to his Written
Submission which counsel contended, amounted to the introduction of new
and fresh evidence without leave of the court as required by law. Counsel
relied on Rule 26 of the Court of Appeal Rules, 1997, CI 19 which deals with
new evidence on appeal. The said Rule 26 provides thus:

“26. New evidence on appeal

(1) It is not open as of right to any party to an appeal to adduce new

evidence in support of his original case but, in the interest of justice, the
Court may allow or require new evidence to be adduced; such evidence
shall be in the form of oral examination in Court, an affidavit or a
deposition taken before an examiner or commissioner as the Court may
direct.

(2) A party may, by leave of the Court, allege any facts essential to the issue
that has come to his knowledge after the decision of the court below and
adduce evidence in support of the allegations

Counsel for the Respondents also relied on the following pertinent

authorities, namely:

POKU V POKU [2007 – 2008] SCGLR 996 and SARAH OBUADABANG

LARBI V TEMA DEVELOPMENT CORPORATION Civil Appeal No:
J4/63/2019 dated 19 February, 2020 (Unreported). Counsel submitted that in
line with the above authorities, in as much as the Appellant did not
demonstrate that the new piece of evidence was neither in the possession of
the Appellant nor obtainable by the exercise of reasonable diligence or human
ingenuity before the judgment of the trial High Court, the new evidence
ought to be struck out of the Written Submission of the Appellant as well as
every reference to same in the Written Submission. We agree with Counsel
for the Respondent and accordingly hereby strike out the excerpts of the
2020 Diary of the ECG found at pages 4 to 5 of the Appellant’s Written
Submission as well as references to same in the Written Submission.

[13] We also note that it is the Appellant who deposed that the 10 Respondent
was a Board Member of the ECG and that this was denied by the
Respondents. That being the case, the burden of proof shifted onto the
Appellant to introduce evidence in support of his position at the trial court to
avoid a ruling against him on that issue. The time honoured and hallowed
principle of law is that he who asserts must prove, not he who denies must
prove. It was essential to the success of the Appellant’s case that the 10
Respondent was also a Board member. That being the case, he assumes the
burden of proof. See BANK OF WEST AFRICA LTD. V. ACKUN [1963] 1
GLR 176 SC where the Supreme Court held that: “The onus of proof in civil
cases depends upon the pleadings. The party who in his pleadings raises an
issue essential to the success of his case assumes the burden of proof. In the
instant case the defendants accepted substantially the plaintiff’s claim but
raised an additional or separate issue. The trial judge was right in placing
the onus of proving this additional issue on them” The Appellant failed to
prove that the 10 Respondent was also a Board member at the trial court. It is
therefore wrong for the Appellant to accuse the Respondents of deposing to
deliberate falsehood that the 10 Respondent was not a Board member or to
accuse them for not putting any evidence before the Court to show that the 10
Respondent was not a Board Member. Instead, Counsel for the Appellant
tried to introduce the evidence that he should have put before the trial court
at the Appeal court in contravention of the rules on the adduction of fresh
evidence on appeal. Counsel could have exhibited the information he had in
the supplementary affidavit filed on behalf of his client. We also take judicial
notice of the fact that it is H.E. the President of the Republic of Ghana who
appoints Board Members of Public institutions like the ECG. Even though
such Board members usually have a specified term of office, yet they serve at
the pleasure of the President and changes may be effected at any time. The
2020 Diary of the ECG that the Appellant wrongfully tried to introduce in the
appeal even if it were acceptable would be a rebuttable and not a conclusive
presumption that the 10 Respondent was also a Board member of the ECG.

[14] In answer to the first ground of appeal, Counsel for the Respondents
referred to Oder 74 of the High Court (Civil Procedure) Rules 2004, C I 47
which governs the award of costs and Article 296 of the Constitution which
governs the exercise of discretionary power. Order 74 principally states that
the award of damages shall be at the discretion of the court though within the
constraints of the parameters enumerated therein. Article 296 also provides
that: -

“Where in this Constitution or in any other law discretionary

power is vested in any person or authority -
(a) that discretionary power shall be deemed to imply a duty to be
fair and candid;
(b) the exercise of the discretionary power shall not be arbitrary,
capricious or biased wither by resentment, prejudice or personal
dislike and shall be in accordance with due process of law; and
(c) where the person or authority is not a judge or other judicial
officer, there shall be published by constitutional instrument or
statutory instrument, regulations that are not inconsistent with the
provisions of this Constitution or that other law to govern the
exercise of the discretionary power.”

Counsel for the Respondents also relied on BALMOOS V. MENSAH and

BLUNT V. BLUNT both cited supra which were also cited by Counsel for the
Appellant to press home the time honoured principle of law that an appellate
court can interfere with the exercise of discretion of a lower court only in
exceptional circumstances such as where the discretion is exercised on wrong
or inadequate materials or by giving weight to irrelevant or unproved matters
or omitting to take relevant matters into account. In any such situation, the
onus lies on the Appellant to show that the discretion had been wrongly
exercised.

Counsel for the Respondents contended that in the light of the above
referenced statute law and authorities the costs awarded cannot be described
as harsh and or excessive because of the fact that the Respondents had to
engage the services of a lawyer, who filed three affidavits on behalf of the 1 –
9, 11 and 12 Respondents, and also filed a 22 page Written Submission on
behalf of the Respondents. Counsel also disputed, and rightly so, the
statement by counsel for the Appellant that the hearing of the application took
only one day. The Record shows that hearing of the application took place on
4 March, 2020; 20 March, 2020; 30 March, 2020 and judgment delivered on 26
May, 2020. See pages 75, 77, 79 and 275 of the Record of Appeal. On two of
those sittings namely 4 March and 20 March, counsel for the Respondents
travelled from Accra to Kumasi to be present in court.
[15] Counsel also referred to the embarrassment, anguish and restlessness the
action caused the Respondents and their families and in particular the
members of the Board of Directors of the ECG who are persons of high repute
in the Corporate Governance Sector. We are of the considered opinion that it
is in this context that the trial judge referred to the publication of the
substituted service in the Daily Graphic Newspaper in the award of the costs
and not as insinuated by Counsel for the Appellant that the reasoning of the
court was that compliance with the court’s own order by the Appellant was
an offence for which reason the costs against the Appellant had to be
enhanced. Counsel particularly emphasised the fact that by way of the
substituted service, the Appellant had the names of the Respondents
published in the Daily Graphic Newspaper accompanied by facts sworn to by
the Appellant accusing them as persons who had no respect for the authority
of the court and its orders. Counsel further contended that one cannot
overlook the impression the unsubstantiated allegations by the Appellant
caused on the reputations of the Respondents and that they certainly deserved
to be compensated by way of costs when the trial judge found the application
for contempt against them to be unmeritorious. [16] It is the position of
counsel for the Respondents that in the light of all these circumstances the
costs of GH¢2,000.00 for each of the Respondents cannot be said to be
unreasonable or without basis more so when Counsel for the Appellant was
not able to demonstrate how the award of the said costs was arbitrary and
without basis. We agree with the submissions of counsel for the Respondents
on this ground of appeal. The Appellant has not been able to make out the
case for this court to interfere in the exercise of discretion by the trial court in
the award of the costs. The first ground of appeal therefore fails and is
dismissed.

Ground b.

The Honourable Court erred in holding that the absence of personal service
of the injunction on the Respondents/Respondents meant that they cannot
be in contempt.

[17] Counsel for the Respondents responded to grounds (b), (c) and (d)
together. We shall be incorporating her responses to grounds (b), (c), and (d)
in the consideration of the arguments and submissions of Counsel for the
Appellant under the respective grounds of appeal.

Under ground (b) of the grounds of appeal, it is the view of counsel for the
Appellant that the position of the trial court that the absence of personal
service of the injunction on the Respondents/Respondents meant that they
cannot be in contempt is erroneous because the Respondents have been cited
for contempt in their capacity as Board members of the ECG. Counsel relied
on ABU RAMADAN & NIMAKO (NO. 4) V. ELECTORAL COMMISSION
& ATTORNEY-GENERAL (NO. 4) [2015 – 2016] 2 SCGLR 1105 at 1109 H 3
where the Supreme Court held that “... Where a corporation or company is
held in contempt of court, it is the directors and officers who answer for it,
since they constitute the human face of the legal entity”. Also see DEEPSEA
DIVISION OF NATIONAL UNION OF SEAMEN & OTHERS V. TRADES
UNION CONGRESS OF GHANA & OTHERS [1982- 83] GLR 941.

Counsel conceded that the Respondents in the instant appeal were not the
Board members of ECG at the time the injunction order was made but as
current Board members, they were answerable and need not be served
personally with the order of injunction the corporate body has breached.
Counsel submitted that the true position of the law is that personal service of
an order is not indispensable particularly in the circumstances of the instant
appeal because knowledge of the order was not denied even though the
Respondents deposed that the disconnection that the officials of ECG did was
legitimate and therefore justified. Counsel relied on several authorities
including CLELLAND V. ALEXANDRA [1966] GLR 758 H1 where the court
held that “(1) Actual service of a court's order on the party alleged to have
disobeyed it was not essential if it was shown that he might have known or
knew of the order.” Also see the following cases: - REPUBLIC V MOFFAT
AND OTHERS; EX PARTE ALLOTEY [1971] 2 GLR 391 and REPUBLIC V.
NANA BUABIN II; EX PARTE NANA KUFFOUR 1 [1992 – 93] 4 GBR 1663
at 1664 H 2 CA

[18] Counsel for the Respondents however defended the position of the trial
judge. Counsel relied on Order 43 r 7 of C I 47 and page 612 of S. Kwami
Tetteh’s authoritative book Civil Procedure, a Practical Approach where the
learned Author stated therein that “… a committal proceeding may not be
brought for the neglect of a judgment or order to do or abstain from an act
unless a copy of the judgment or order has been served personally on the
person against whom the mandatory or prohibitory injunction is directed.”
Counsel for the Respondents further urged that the Appellant failed per his
affidavit evidence to show and prove how the Respondent Company or the
Respondents knew of the order for interlocutory injunction or should have
known of the service of same on them and therefore the finding by the trial
judge cannot be said to be erroneous. We repeat Order 43 (7)(3)(a) of C I 47
which provides that “(3) Subject as stated, an order requiring a body
corporate to do or abstain from doing an act shall not be enforced as
provided in rule 5 subrule (1) paragraph (bb) or (cc) unless

(a) a copy of the order has also been served personally on the officer against
whose property leave is sought to issue a writ of sequestration or against
whom an order of committal is sought” (emphasis added)

We have not found anything in the Record of Appeal to the effect that the
Respondents have been personally served with the order of interlocutory
injunction as required by Order 43 (7)(3)(a) of C I 47. Ground (b) of the
grounds of appeal is therefore dismissed.

Ground c.

The Honourable Court erred in holding that the contemptuous acts were
committed at a time the substantive suit had been struck out and therefore
contempt cannot be committed in the circumstances.

[19] The Record indicates that the suit was struck out for want of prosecution
on 26 July 2019 following the Registrar’s Summons to that effect and that it
was not until 14 February, 2020 that an application to relist the suit was
granted. The disconnection of electricity to the Appellant’s premises
complained of as contumacious took place on 6 November, 2019 and again on
21 January, 2020. On the basis of this the trial court held that since the
disconnection took place at the time that the suit was struck out, the
Respondents could not be guilty of contempt of court. Counsel for the
Appellant argued that the trial judge erred in this reasoning and conclusion.
Citing several High Court cases to back his arguments, counsel contended
that even though the suit was struck out, nevertheless, it was still pending
before the court in so far as one can take any proceeding on it and that in the
instant case, a step was indeed taken which culminated in the suit being
relisted on 14 February, 2020.

[20] In answer, counsel for the Respondents relied on the unreported Court of
Appeal case of THE REPUBLIC V. COMMISSION ON HUMAN RIGHTS
AND ADMINISTRATIVE JUSTICE; EX PARTE KWAME PEPRAH AND 5
OTHERS. Civil Appeal No. H1/7/11 dated 24 March, 2011 where “Sub
Judice” was explained by the court thus: “In simple terms, sub judice means
‘under or before a judge or court under judicial consideration’” Can a suit that
has been struck out for want of prosecution still be under or before a judge or
court for judicial consideration? The answer in our considered view is NO. In
any event, if the matter was still pending or sub judice despite having been
struck out, why did the Appellant deem it necessary to file an application for
the relistment of the suit on 28 January, 2020 which motion was subsequently
granted on 14 February, 2020. We note that the Appellant filed the application
for contempt on the very 14 February, 2020 at 3pm. The obvious and
irresistible inference is that the Appellant knew that until the substantive
matter was relisted to bring it within the purview of the court, no matter was
pending before the court.

[21] Counsel for the Respondents further submitted that by virtue of Order 25
of CI 47, which directs that an application for interlocutory injunction cannot
be filed before the issuance of the writ, it would be absurd for an order of
interlocutory injunction to stand or exist when the substantive matter which
gives it life ceases to exist. Counsel made the pertinent observation that the
implication of having a “living” enforceable interlocutory injunction while the
substantive matter remains struck out for want of prosecution would be dire
for any legal system since parties who have obtained interlocutory injunctions
may be unperturbed by the striking out of an action for want of prosecution.

[22] Counsel for the Appellant also submitted that the purported striking out
of the suit was not done in accordance with the rules set out in Order 37 r. 4 of
C I 47 because no notice of the striking out was served on the Appellant as
mandatorily required by Order 37 r. (4)(2). Order 37 r. (4)(2) provides that the
notice of the application shall be served on all the parties concerned at least 14
days before the day stated in the notice for hearing the application. This
argument by counsel for the Appellant is of no moment. A decision of the
court is presumed to be right and until it is set aside on review or appeal or
quashed by certiorari, it remains valid. See the case of IN RE KROBO STOOL
NO (1) NYAMEKYE (NO. 1) V. OPOKU [2000] SCGLR 347. Having failed to
apply for a review of the order and or appealing against same the Appellant
cannot be heard to complain that the processes leading to the striking out of
the suit were wrong without itemizing it as a ground of appeal. In any event,
all the parties who were affected by the Registrar’s Summons were given 14
days notice by substituted service which is a recognized and acceptable
means of service. See pages 33 and 39 of the Record of Appeal.

[23] In defence of the conclusion of the trial judge in respect of ground (c) of
the grounds of appeal, counsel for the Respondents reiterated that at the time
the officials of the ECG disconnected the electricity supply to the premises of
the Appellant, the substantive suit had been struck out as indicated earlier in
this judgment and that there could not be a pending injunction when the
substantive matter had ceased to exist. Counsel relied on the unreported case
of EX PARTE KWAKU NSIA, cited supra. In the said case, Ayebi J A posited
as follows at pages 8 – 10 of the judgment: -

“The respondent submitted that the suit at the District Court had ceased to
exist in that the court itself has declined jurisdiction in the matter.
Consequent upon that, a fresh suit had been instituted at the High Court.
The import of that defence is that the order of interlocutory injunction no
longer existed and the respondent cannot be held liable for violating it. …

In the light of this inability of the appellant to prove the pendency of the
suit which is the foundation of the order of interlocutory injunction, should
the motion of the appellant be upheld against the respondent? The sum
total of the written submission of the respondent is to the effect that the
appellant has woefully failed to discharge the burden of proof in this
particular type of application, a quasi-criminal matter in which the standard
of proof is proof beyond reasonable doubt.

As the applicant, the appellant must lose his claim as he is unable to prove
the pendency of the suit and for that matter, the interlocutory order. That
burden on the appellant is made clear in section 11(1) of the Evidence Act,
1975 (Act 323) that:

“For the purposes of this Act the burden of producing evidence means the
obligation of a party to introduce sufficient evidence to avoid a ruling
against him”.”

Ground (c) of the grounds of appeal has not been made out and is
consequently, hereby dismissed.

Ground d.

The Ruling is against the weight of affidavit evidence before the

Honourable Court.

[24] Under this ground of appeal, counsel pointed out a plethora of defects in
the judgment of the trial court. As a preface to his submissions, Counsel for
the Appellant relied on the case of OWUSU-DOMENA V AMOAH [2015 –
2016] 1 SCGLR 790 at 792 H 2 where the Supreme court held that: -

“Where the appeal was based on the omnibus ground that the judgment
was against the weight of evidence, both factual and legal arguments could
be made where the legal arguments would help advance or facilitate a
determination of factual matters. …Per Curiam: The sole ground of appeal
that the judgment is against the weight of evidence, throws up the case for a
fresh consideration of all the facts and law by the appellate court.”

In the light of the above principle enunciated in the OWUSU-DOMENA case

cited immediately supra, counsel for the Appellant questioned the propriety
of the processes filed by Counsel for the Respondents in this matter in that
Counsel for the Respondents did not disclose a Registration Number of the
office from which the processes emanated. Counsel submitted that this failure
by counsel for the Respondents to disclose the Registration Number of her
Chambers sins against Rule 4 (1) and (4) of the Legal Profession (Professional
Conduct and Etiquette) Rules, 1969, L I 613. Rule 4(1) and (4) direct as
Conduct and Etiquette) Rules, 1969, L I 613. Rule 4(1) and (4) direct as
follows”

“Rule 4—Chambers and Pupillage.

(1) A lawyer shall not practice unless he is a member of professional

chambers or the pupil of such a member.

(4) All professional chambers shall be registered with the General Legal
Council.”

Counsel also relied on the following cases: THE REPUBLIC V. HIGH

COURT (FAST TRACK DIVISION), ACCRA; EX PARTE TERIWAJAH &
KORBOE (REISS & CO (GHANA) LTD INTERESTED PARTY) [2013 –
2014] 2 SCGLR 1247; THE REPUBLIC V. HIGH COURT, ACCRA, EX
PARTE NATIONAL LOTTERY AUTHORITY (NATIONAL LOTTO
OPERATORS ASSOCIATION & OTHERS INTERESTED PARTIES) [2009]
SCGLR 390 and NORTEY (NO. 2) V. AFRICAN INSTITUTE OF
JOURNALISM & COMMUNICATION & Others (NO. 2) [2013 – 2014] 1
SCGLR 703 at 707 H 4. This issue should have been raised at the trial for
consideration. It is no longer the law that failure to disclose a lawyer’s
Solicitor’s Licence or the Registration Number of the Chambers automatically
means that the relevant Licence does not exist and therefore fatal to his clients
case. The issue ought to be raised at the trial and opportunity given to the
affected lawyer to provide the required information or evidence of same
should perchance the omission happens to be inadvertent. See the unreported
case of MRS. CECILIA ESSIEN V. PROSPER EZAN KODJO & KWAME
OWUSU CIVIL APPEAL NO.: H1/55/18 dated: 26 JUNE, 2019. Also see the
unreported Supreme Court case of NANA AMPOFO KYEI BAFFOUR V
JUSTMO CONSTRUCTION LTD & 4 ORS. CIVIL APPEAL NO. J4/51/2016
dated 14 JUNE 2017 where the Supreme Court per Adinyira (Mrs) JSC opined
thus:

“We are surprised that this preliminary objection is being raised at this late
stage as counsel for the plaintiff, had raised a similar point at the court of
appeal and repeated it before us as an additional ground of appeal. This
objection appears to be tit for tat and shows lack of candour on the part of
both lawyers.

Though an objection such as this goes to the validity of the processes filed
by a solicitor and could therefore be raised at any stage of the proceedings,
the best practice in our opinion, is for the point to be raised at the earliest
opportunity and at the early stage of the proceedings at the trial court.”

[25] Under this Omnibus ground, Counsel for the Appellant also took issue
with the tirade of the trial judge against him in respect of paragraph 8 of the
Appellant’s affidavit in support of the application for relistment where the
Appellant sought to say that the suit was not listed in the Registrar’s
Summons whereas same was stated clearly as no. 64 of the Registrar’
Summons. The trial judge remarked that for the Appellant to depose to the
said statement and supported by counsel who moved the application was an
attempt to mislead and deceive the court. The trial judge then drew the
attention of counsel to Rule 9(4) of the Legal Profession (Professional Conduct
and Etiquette) Rules, 1969, (L I 613.) which stipulates that:
“Any deliberate deception of the court on the part of a lawyer is a
professional misconduct. Equally a lawyer is guilty of such misconduct if
he knowingly permits a client to attempt to deceive the court”

Counsel conceded the deposition frowned upon by the trial judge but
submitted that the tirade against him was misplaced because it is true that the
Registrar’s Summons did not mention the Appellant’s suit eo nomine since
the heading merely stated “OWUSU RICHARD NYARKO VRS SAMUEL
ADJEI & ORS AND 96 OTHER CASES” See page 39 of the Record of
Appeal. Counsel therefore submitted that there was therefore no basis for the
tirade of the trial judge against him. We must say that we are not persuaded
by this submission because it was incumbent on Counsel for the appellant to
exercise the necessary diligence to ascertain the details of the other 96 cases
before guiding or advising his client to depose under oath that the Registrar’s
Summons did not mention the Appellants suit eo nomine. If counsel had done
his work as required of him, he would have found out that even though their
suit was not mentioned eo nomine yet their suit was among the affected cases.
The well accepted practice is that the title of cases with several parties can be
abbreviated provided however that the full list of the affected parties is
exhibited as was done by the Registrar’s Summons.

[26] Counsel also faulted the trial judge for the procedure the court adopted
which disabled the leading of any evidence if the court felt that affidavit
evidence was insufficient to ground conviction. Counsel submitted that
having regard to the rival contention of facts as set out in the respective
affidavits, it was incumbent on the trial court to hear further evidence before
coming to a definitive conclusion. Counsel submitted that by failing to do so,
the trial court occasioned a substantial miscarriage of justice because it led the
court to arrive at conclusions not borne out by the Record. Counsel relied on
the following cases: BOAMAH & ANSAH SIKATUO V. AMPONSAH
[2012] 1 SCGLR 58 at 59 and KOJACH LTD. V. MULTI CHOICE (GH) LTD.
[2013 – 2014] 2 SCGLR 1494 at 1495 where the Supreme Court stated Per
Curiam that “We are of the considered opinion that if counsel for the
plaintiff was doubting the crucial depositions in … the defendant’s
affidavit, he could have sought leave of the trial court to cross-examine the
deponent. Even though the procedure is sparingly used, this case offered a
classic example whereby counsel ought to have sought leave of the trial
judge to resolve the issue raised by the defendant in the affidavit filed by
cross-examining the deponent.”

In response, Counsel for the Respondents pointed out that the Appellant
failed to inform the court about the rival contentions of facts leading to the
specific issues in contention. We have studied all the respective affidavits and
we do not find any rival contentions of fact that require further hearing. In
any event, if the Appellant was of that view that further evidence was needed,
nothing prevented him from applying to the court for leave to cross-examine
the deponents of the affidavits that contained the rival contentions of facts as
stipulated in the KOJACH LTD case cited supra which he himself relied on.

[27] Counsel for the Appellant also complained about the joint affidavit filed
by the 1 – 9 Respondents which he says does not indicate the residential
addresses of all the 9 deponents contrary to the mandatory rules of court, in
particular Order 20 (4) (2) of C I 47. The said Order 20 rule (4) (2) provides
that “(2) Every affidavit shall be expressed in the first person and shall state
the place of residence of the deponent and the occupation of the deponent
or, if the deponent has none, the description of the deponent and whether
the deponent is, or is not employed by a party to the cause or matter in
which the affidavit is sworn.” (Emphasis added)

It is true that the deponents did not state their respective places of residence
but they provided a description of themselves as Board members of the ECG
and although strictly speaking, they are not employees of the ECG yet they
showed the nexus between themselves and the ECG which was a Party in the
substantive suit. This satisfies the requirement of Order 20 rule (4)(2) of C I 47.
See page 81 of the Record of Appeal.

[28] Counsel also pointed out that the exhibits accompanying all the three
affidavits filed by the Respondents are bereft of a certificate of exhibits as
mandatorily required by Order 20 (14)(2) of C I 47 which provides that: “(2)
Any exhibit to an affidavit shall be identified by a certificate of the person
before whom the affidavit is sworn.” Counsel relied on the cases of
REPUBLIC V. WASSA FIASE TRADITIONAL COUNCIL & Another: EX
PARTE NYAMEKYE & Others [2015 – 2016] 2 SCGLR 1305 at 1307 and
STANDARD BANK OFFSHORE TRUST CO LTD V. N.I.B. Civil Appeal
No. J4/63/2017 dated 21 June, 2017; [2017 – 2018] I SCLRG 707 at 728 – 729 and
submitted that breach of the requirements of Order 20 rr (4)(2) and (14)(2) of C
I 47 is fatal. We have already held that Order 20 rule 4(2) was not breached.
We are also of the considered opinion that breach of Order 20 r 14(2) of C.I. 47,
in as much as it relates only to a rule of procedure, is a mere irregularity that
can be cured under Order 81 of C. I 47. See THE REPUBLIC V HIGH
COURT, ACCRA; EX PARTE ALLGATE (AMALGAMATED BANK LTD.
INTERESTED PARTY) [2007 – 2008] SCGLR 1041. Counsel for the Appellant
also relied on THE REPUBLIC V HIGH COURT (FINANCIAL DIVISION),
ACCRA; EX PARTE TWENEBOAH KODUAH (EXECUTIVE DIRECTOR
OF ECONOMIC AND ORGANISED CRIME OFFICE (EOCO)
INTERESTED PARTY [2015 – 2016] 1 SCGLR 535 at 544 to 545 where
Akamba JSC posited that “There is an emerging tendency in practice today
to consider that the rules of procedure indeed do not matter so long as an
application is placed before the court. Yet the rules of procedure are as
integral as the substantive law to the success of the trial process. It is
therefore essential that timelines set down under the rules of court are
adhered to, so as to facilitate timely trials. Infringements of these rules
without reasonable justification should be met with corresponding
sanctions or denials.”

[29] In response, counsel for the Respondents submitted that the issues raised
therein are points of law which were never canvassed before the trial court.
Counsel contended that the inference is that the Appellant had no issues with
same until his application failed. Counsel supported her position with the
case of MADAM NAFISAH IDDRISU V. NORGA GRUMAH, Supreme
Court Civil Appeal No. J4/21/2012 dated 24 May, 2013 where Wood CJ (as
she then was) stated:

“… In A-G v. Faroe Atlantic Co Ltd. {2005 – 2006] SCGLR 271 at 309, I had
opportunity to examine the legal position on this point. My opinion was
that: “The salutary and well known rule is that where a point of law is
relied on in an appeal, it must be one which was canvassed at the trial. …”

The Appellant shot himself in the foot by failing to comply with the
requirement of Rule 8(4) of the Court of Appeal Rules, 1997, CI 19 which
stipulates that: (4) Where the grounds of an appeal allege misdirection or
error in law, particulars of the misdirection or error shall be clearly stated.”
Counsel did not even state his complaints as grounds of appeal, much less to
provide particulars of same.

[30] Counsel for the Appellant also submitted that another fundamental
defect of the judgment on appeal is that jurisdictional issues were raised in
paragraph 6 of all the three affidavits filed by the Respondents, yet the court
failed to deal with those issues before proceeding to enquire into the merits of
the application before it. Counsel relied on THE REPUBLIC V HIGH
COURT (LAND DIVISION), ACCRA, EX PARTE LANDS COMMISSION
(NUNGUA STOOL & OTHERS INTERESTED PARTIES) [2013 – 2014] 2
SCGLR 1235 at 1237 H 2 where the Supreme Court stated per curiam that “…
It was settled that when the question of jurisdiction was raised before any
court, the court must proceed to determine it before proceeding to enquire
into the claim and/or any other matter before it including pleas that might
result in the disposal of the action without it being heard on the merits”;
Counsel also relied on the following cases: THE REPUBLIC V ADAMAH-
THOMPSON & Others; EX PARTE AHINAKWA II (substituted by)
AYIKAI (NO. 2) [2013 – 2014] 2 SCGLR 1396 at 1402; and THE REPUBLIC V
HIGH COURT, ACCRA; EX PARTE SALLOUM & OTHERS (SENYO
COKER INTERESTED PARTY) [2011] 1 SCGLR 574 at 577.

The referenced paragraph 6 discloses that these are the “jurisdictional issues”
complained about, namely: -:

i. That the title of the suit does not disclose the substantive matter on
which the application is hinged and same ought to be struck out

ii. There was no action or order pending before the court as at the time of
the alleged contemptuous acts by the Respondents herein on the 6 of
November, 2019 and the 21 of January, 2020 to ground the present action.

iii. That this instant application being an originating motion of summons

under CI 47, is subject to Order 3 rule 1 of the C I 47 and counsel shall plead
forum non conveniens and

iv. There is no allegation of any conduct whatsoever against any of the 1 –

11 Respondents in the present application and as such, the applicant ought to
be non-suited.

We must say that contrary to the submission by Counsel for the Appellant,
the trial judge did consider the preliminary legal objections raised by the
Respondents in the paragraph 6 of their Affidavit in Opposition. See pages 8
to 10 et seq of the judgment of the trial court which can be found at pages 282
to 284 et seq of the Record of Appeal. At the said pages, the trial judge struck
out issue (iii) because same was abandoned by counsel for the Respondents
when she addressed the court. Issue (i) was considered and in the exercise of
the court’s inherent jurisdiction as well as the court’s general jurisdiction
under articles 140(5) and 141 of the 1992 Constitution, the court modified the
title of the case to read: “The Republic vrs. Electricity Company of Ghana
Ltd. per Kwame Agyemang Budu and 11 others; Ex parte county Hospital
Ltd.” The trial judge then indicated that he would determine issues (ii) and
(iv) together with the substance of the application which he did. Although the
general rule as stated in the EX PARTE LANDS COMMISSION case cited
supra is that preliminary legal objections should be considered first before
going into the merits of the case, there is no hard and fast rule requiring that
the trial judge must consider those preliminary legal issues in a separate
judgment before determining the substantive issues. Indeed, in the same EX
PARTE LAND COMMISSION case the Supreme Court stated at page 1236
that “… On a purely prudent case management basis, any disputed facts on
which the legal question was grounded, must be determined at the most
just and convenient stage of the proceedings, given that its early resolution
might, without more, well dispose of the entire action, bringing it to a
closure. … The stage at which a court must pause to take evidence on the
disputed facts must therefore be dealt with on a case by case basis. It would
follow that a just and fair determination of the disputed facts only at the
end of a full scale trial of the substantive hearing was altogether
conceivable …”

[31] Counsel for the Appellant also complained that the trial judge excluded
the supplementary affidavit from consideration and that this is wrongful
because it denied the inherent right of the Applicant to respond to the matters
raised in the affidavits in opposition of the Respondents. Counsel submitted
that this is further proof of the unsatisfactory nature of the procedure adopted
by the trial court in determining the application before it.

This is what the trial judge said in respect of the supplementary affidavit at
page 3 of his judgment, which can be found at page 277 of the Record of
Appeal:

“The Applicant filed a supplementary affidavit on the 3 March, 2020

without leave of court. As a result, this court is constrained to have regard to
the said supplementary affidavit, in determining the said application. …”

It is obvious from the above quotation that the trial judge considered the
supplementary affidavit albeit reluctantly. Therefore, this submission by
counsel for the Appellant that the trial judge excluded the supplementary
affidavit is not borne out by the Record.

[32] We must say that we have gone into the details of ground (d) of the
grounds of appeal merely for educational purposes. This is because, on the
authority of the recent Supreme Court case of ZUKPUITOR AKPASU FENU
& 4 ORS V ATTORNEY-GENERAL & 3 ORS [2019] 130 G.M.J. 179 SC and
similar earlier Supreme Court cases enunciating the same principle, the
Supreme Court admonished that: “It needs to be noted that the omnibus
ground is usually common in cases in which evidence was led and the trial
court was enjoined to evaluate the evidence on record and make its findings
of fact in appropriate cases. In cases in which no evidence was led but the
order which has been appealed against in interlocutory, such ground of
appeal is not canvassed at all. This has been settled long ago by this court in
three notable cases to wit; Asamoah v Marfo [2011] 2 SCGLR 832. Republic v,
Conduah; ex parte Aaba substituted by Asmah [2013 – 2014] SCGLR 1032 and
Re Suhyen Stool; Wiredu & Obenewaa v. Agyei & Ors [2005 – 2006] SCGLR
424”

We therefore place no weight on the submissions of counsel for the Appellant

under ground (d) the omnibus ground of appeal as it is an inappropriate
ground of appeal in the circumstances of this matter where no evidence was
led. Ground (d) of the grounds of appeal is therefore dismissed as being
misconceived.

Ground e.

The Honourable Court erred in adjudicating a contempt matter in the

absence of the 1 – 11Respondents who never appeared before the
Honourable Court and who were absent even when the Ruling was being
given.

[33] Under this ground of appeal, counsel submitted that as contempt is a

quasi- criminal matter, and tried according to the procedure and standard of
proof required in criminal matters, the accused in criminal matters or the
respondent in a contempt application is required to be present on every day
that the matter is up for hearing by the court. Counsel submitted that this is a
well-known practice not only of the courts in Ghana, but throughout the
Commonwealth and even in jurisdictions which do not base themselves on
the common law. Counsel therefore contended that to the extent that this
hallowed practice was disregarded, the proceedings fell short of the proper
legal standard required and the decision ought not to stand on account of
that. Counsel relied on the case of HARLLEY V. EJURA FARMS (GHANA)
LTD, [1977] 2 GLR 179 at 214 – 215 (C A Full Bench) where the court held per
Taylor J (as he then was) that where a particular practice had prevailed for a
long time, it is only statute which can abolish it.

[34] Counsel for the Respondents, in a riposte to this submission by counsel

for the Appellant referred to excerpts of the Record of Appeal to demonstrate
that even though the 1 – 11 Respondents were never present in court, their
absence was justified. The first time the case was called was on 4 March, 2020.
See page 75 of the Record of Appeal. The 12 Respondent was present while
the others were absent. The court notes for that day indicates that there was
no proof of service on the 1 – 11 Respondents. The second time the case came
up for hearing was 20 March, 2020. See page 77 of the ROA. As at that date, as
the proceedings of the third sitting will show the Application had not yet been
served on the 1 – 11 Respondents because the order for the substituted service
had not yet been published. The third time the case was called was on 30
March, 2020. See page 79 of the ROA. The court notes for the day show that
the said Respondents were served with the substituted service of the
application through the Daily Graphic publication of 24 March, 2020. The
court noted that since the notice was to remain effective for 14 days, it would
lapse on 7 April, 2020. The court also took notice of the lock down due to the
COVID-19 Pandemic and ordered the respective counsel of the parties to file
their submissions on all the issues raised simultaneously. Judicial notice is
taken of the fact that on 27 March, 2020, H. E the President of the Republic
declared a lockdown of Accra, Kasoa and its surrounding areas as well as
Kumasi and its Surrounding areas. Therefore, even if the 1 to 11 Respondents
and their counsel, who are all resident in Accra, were minded to attend the
court sitting of 30 March, 2020 despite the publication of the substituted
service not having lapsed, they could not have done so due to the lockdown.
The fourth time the case was called was on 26 May, 2020 when judgment was
delivered. Following closely on the lockdown, His Lordship the Honourable
Chief Justice also issued directives to decongest the courts and even
dispensed with the presence of accused persons and prisoners in court. The
said directives by the Honourable Chief Justice still remain in force and
judicial notice is also taken of same. Under these circumstances, we hold that
the 1 to 11 Respondents had justification for their absence in court. The
fifth ground of appeal therefore fails and is accordingly dismissed.

Ground f.

The Honourable Court erred in basing itself on an affidavit filed jointly by

the 1 – 9 and 11 Respondents contrary to settled practice in contempt
applications requiring separate affidavits by each Respondent.

[35] Counsel for the Appellant relied on the case of IN RE EFFIDUASE

STOOL AFFAIRS (NO.2); REPUBLIC V. NUMAPAU. PRESIDENT OF THE
NATIONAL HOUSE OF CHIEFS and Others; EX PARTE AMEYAW II (NO.
2) [1998 – 1999] SCGLR 639 ay 651 to fault the trial judge for accepting a
jointly sworn to affidavit in opposition. In the said case, the Supreme Court
held that: - “When the respondents appeared before us, this court pointed it
out to them that since the charge of contempt was quasi-criminal it was
necessary for each respondent to answer for himself. …”. Counsel therefore
submitted that the filing of one affidavit by the 1 to 9 Respondents was not
appropriate, was contrary to law and therefore the decision of the trial judge
ought not to stand. Counsel sought further solace in the proceedings of 10
June, 2020 in the case of THE REPUBLIC V. SAM’S PROPERTIES AND
REAL ESTATE LTD. & 3 ORS; EX PARTE FREDERICK ATTOH Suit No
D16/14/202 dated 10 June, 2020 H C where the trial High Court held that: “In
a criminal matter, each accused person must answer for him/herself. This is
because even though the charges are the same, each accused must give his
own defence which given the circumstances and the defence proffered will
help the court determine whom to convict and whom not to convict and the
sentence each should be given”

Counsel for the Appellant exhibited a copy of the proceedings in the EX

PARTE FREDERICK ATTOH case cited supra. Although Counsel for the
Appellant indicated at page 29 of his Written Submission that the copy of the
court proceedings he exhibited was a certified copy, unfortunately, the said
copy of the proceedings does not bear any mark showing that it was certified
by the Registrar of the trial court. In the circumstances, therefore, even though
the court purportedly stated the correct position of the law same cannot be
admitted in court on account of the non-certification by the Registrar of the
court. See the case of KENNEDY and Another V. TAGOE and Another
[1962] 1 GLR 268 where the court held that a court should not admit an
uncertified copy of a judgment in evidence. We therefore, attach no weight to
the exhibited uncertified proceedings of the EX PARTE FREDERICK
ATTOH case.

[36] Responding to this last ground of appeal, counsel for the Respondents
submitted that Counsel for the Appellant has misinterpreted the EX PARTE
AMEYAW II (NO. 2) case cited supra that he relied on in that he failed to
appreciate the distinction between a joint affidavit and an affidavit solely
sworn to by one person on behalf of others. Counsel submitted that the
Supreme Court advised against the latter scenario because in the said case, the
Respondents sought to align themselves with an affidavit that had been
sworn to by one person.

Counsel for the Respondents distinguished the instant appeal from the EX
PARTE AMEYAW II (NO. 2) case cited supra in the sense that in the instant
appeal the affidavit in opposition filed by the 1 to the 9 Respondents was
jointly sworn to by all the Board members and not one member on behalf of
the others. See pages 85 – 86 for the individual signatures of the nine (9)
deponents. This implies that each of the deponents swore to the facts deposed
to in the affidavit separately/individually. The Board members were not cited
for contempt for something they had personally done but rather for
something the organization they superintend over had done. It is therefore
understandable that they could not have different facts or played different
roles since it is one activity allegedly done by the organization that gave rise
to the action against them. To canvass that the Respondents ought to repeat
the same depositions nine times when one document subscribed to by all of
them individually can achieve the same purpose would defeat the import of
saving costs and time in litigation as required by Order 1 rule 2 of the High
Court (Civil Procedure) Rules, 2004 (C I 47) which admonishes parties to
avoid delays and unnecessary expense in litigation. We are convinced that
Counsel for the Respondent is well up to her duties because the 11 and 12
Respondents who are not Board members and serve in different capacities in
the ECG swore to separate affidavits. See pages 19 – 23 for the affidavit in
opposition of the 12 Respondent and pages 132 – 136 of the ROA for the
affidavit in opposition of the 11 Respondent. This last ground of appeal has
not been made out and is consequently, hereby dismissed.

Concluding observations:

[37] It is the considered opinion of this court that the Appellant initiated the
substantive suit in this matter for collateral purposes other than the
vindication of its rights. The conduct and trajectory of the case clearly shows
that the Appellant wanted to hide under the litigation to either refuse to pay
for electricity that it consumed or delay the payment for same for as long as
possible. The Appellant initiated the substantive action on 4 August, 2016 and
obtained the order of interlocutory injunction against the Respondent on 1
December, 2016. The Appellant then promptly went to sleep very soundly
without taking any further step in the case until 26 July 2019 when the trial
High Court struck out the case for want of prosecution pursuant to the
Registrar’s Summons for same thus forcing the case to be comatose for two
years and 8 months. In the meantime, the Appellant was consuming
electricity without paying for same. We note that the order in favour of the
Appellant was for electricity supply not to be disconnected to its premises
pending the final determination of the substantive suit and not that the
Appellant should not pay for electricity it consumed pending the
determination of the substantive suit.

[38] Following the striking out of the suit, the Appellant continued on a sound
slumber oblivious of what had happened, only waking up occasionally to
resist disconnection by waiving the order of interlocutory injunction at the
officials of the ECG and illegally reconnecting itself anytime a regular
disconnection was done. The Appellant was finally “rudely awakened” when
on 6 November 2019 and 20 January, 2020, the Appellant’s electricity supply
was disconnected from the Pole. This period also spanned approximately
another six months of consuming electricity and not paying for same. After its
rude awakening, the Appellant rushed to court and upon finding out that the
substantive suit had been struck out, quickly filed a motion for relistment on
28 January 2020, barely a week after the disconnection of 20 January, 2020.
Having been hit where it hurts most, the Appellant found energy and time
such that as soon as the substantive suit was relisted, the Appellant filed the
Application for contempt on the very same day, within hours.
[39] The result of the Appellant’s prior lackadaisical attitude in the
prosecution of its case was that for a period of little above three years, as at
October, 2019, the Appellant consumed electricity for both the residential
premises and the Hospital to the tune of GH¢50,881.08 and made only a paltry
payment of GH¢6,876.02. See page 13 of the ROA. We have detailed all this
trajectory to demonstrate that clearly the Appellant’s intention was to abuse
the process of the court for its collateral interest and not to vindicate its rights
and this was partly aided by the indolence of the former lawyers of the ECG
and its Legal Department. Abuse of court process is clearly frowned upon by
the court and indeed not tolerated.

Overall, this appeal has not been made out and is consequently dismissed.
The judgment of the trial court dated 26 May, 2020 is hereby affirmed.

(SGD.)
ANGELINA M. DOMAKYAAREH (MRS.)
JUSTICE OF APPEAL

(SGD.)

I agree ALEX B. POKU-ACHEAMPONG

JUSTICE OF APPEAL

(SGD.)

I also agree SAMUEL K. A. ASIEDU

JUSTICE OF APPEAL