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Injunctions: Avoiding contempt of court | The Law with Samson Lardy Anyenini (1-10-23)
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NewsTranscript
00:00 Hello, good afternoon and welcome to The Law. This is your legal light, it is your health
00:04 law. I'm Samson Ladia Nyeneni and we're continuing our legal clinic, our education on injunctions,
00:11 how to avoid contempt of court. My guests who were here yes, on Sunday, returned today
00:20 for the second installment and today we'll make sufficient time so you can call in and
00:28 get direct, platinum legal advice. Don't go anywhere, we'll be right back. In the context
00:35 of court or legal proceeding, it may have two meanings. It's not only an injunction,
00:46 it's a term that is used in the court process, not only to restrain somebody, but sometimes
00:52 an injunction. So an injunction could be prohibitive or mandatory in the sense that you are asking
00:58 somebody to do something or it could be used that do not do something. So it may have two
01:04 sides of the sword. It could direct an act to be done or it could restrain an act from
01:11 being done. So a court will grant an injunction, we say no, to preserve the status quo before
01:18 litigation. That's a telecatory injunction. Yes. So I filed a case against Bobby and like
01:25 you rightly explained, we are litigating over a parcel of land. That nobody is supposed
01:33 to do anything that would change the circumstances of the land or the action expended. Once you
01:40 are served with an application for injunction restraining you from undertaking an act, you
01:48 would have to hold on to that application for injunction. The reason is that Article
01:55 125 of the 1992 Constitution, judicial power is vested solely in the judiciary. So if there
02:04 are disputes between parties, it is only the judiciary that can determine it.
02:10 It's an advice from us to the public out there, it's actually a compulsion also by law. That
02:16 once you are served with an application for injunction, the law behoves on you to stop
02:21 whatever you are doing. And like my colleague said, it is out of respect to the court. And
02:28 if you do any act, that tends to undermine the authority of the court. That's a monster
02:34 contempt.
02:34 So you are taking a risk which you could be punished for.
02:38 Exactly. You could be punished for one thing, evidence that you are aware of the pendency
02:44 of the application, yet you decided to disregard it.
02:51 You're welcome back. And my guest, Bobby Banson, is a law lecturer and author of legal
03:02 texts right here in the studio with us today. Thank you for making the time to be here.
03:08 Thank you for having me.
03:08 Thank you so very much for the sacrifice. Albert Djefi is also a law lecturer and author
03:15 of legal texts. Albert, thank you once again for making the time to be with us. Please
03:22 unmute your mic.
03:25 Thank you, Samson, for having me.
03:29 Great, great, great. Right, so we have had tons of commendations coming our way for what
03:38 you two gentlemen did last week in explaining the law down to earth, simplified for people
03:45 to understand, and also to leave people without any confusion and any ambiguity as to the
03:54 question when you are served with a prohibitive process or an injunctive process from the
04:03 court and application, whether you are stopped immediately until it is determined or you
04:10 are not and you can decide to do what you may.
04:16 We obviously found the need to continue this part, too, for the good reason that there
04:23 are certain cases that certain lawyers have referred to, and on the basis of that, they
04:32 state that when you are served with an application for injunction, it is not a court order. It
04:39 is not a judgment, and to that effect, your hands are not sort of tied or stayed from
04:48 taking a step.
04:53 So let's try and understand that from that angle. I'll begin with you, Albert. You
05:01 confirm and you do not intend to vary or change anything from what you said last week, correct?
05:08 Yes, I still stand by what I said last week.
05:21 Recast in brief, even though we played back a bit of it, recast in brief what your position
05:27 is to when someone is served with an application for injunction, what they can or cannot do
05:34 and what the potential consequences may be.
05:38 All right, so what I said last week was that when you are served with an application for
05:45 injunction, you are required to maintain the status quo pending the final determination
05:53 of the application. And what I explained by status quo is that the circumstances of the
05:59 issues at the time, if it is a building that you are developing, whatever stage the building
06:04 has gotten to, you hold on to whatever was prevailing at the time of the service of the
06:10 injunction and wait for the court to determine it before you proceed further. If you act
06:15 contrary to that, that amounts to undermining the integrity of the court. That amounts to
06:22 interference with the administration of justice and you can be cited and punished for contempt
06:27 of court. That was my position last week.
06:30 Thank you very much. Bobby, once again, thank you for making the time to be in the studio.
06:37 What for you will be your brief sum of your position as far as the law is concerned on
06:44 when you are served with an application for injunction from the court, not an order, not
06:50 a judgment of the court?
06:51 Well, like Albert said, the whole idea is to ensure that you do not constitute yourself
07:00 into judicial authority for determining the outcome of that process that has been served
07:06 on you. And so if the application, the reliefs that are endorsed on that motion paper are
07:12 very express and unambiguous as to what they are seeking the court to restrain you from
07:18 doing, it is best that you stay whatever you are doing. You suspend your activities towards
07:26 the reliefs that have been endorsed on the motion paper and give the court the chance
07:30 to either grant the application or refuse the application. If there is enough basis
07:37 for the application to be granted, the court will do so on terms as the court will deem
07:42 fit. If there is no basis for the court to grant the injunction, the court will refuse
07:47 the injunction and compensate you for whatever you would have lost by staying your hands
07:53 in damages. So it is not as if you will not have any remedy. You will definitely have
07:58 a remedy. So why do you then take the law into your own hands as it were when there
08:04 would be a remedy for you if the application is refused?
08:08 Thank you very much. Now I'm going to read a small portion of a case that has been referred
08:14 to many times together with one other case and then we'll come to a certain perspective.
08:23 In this matter, the court said, and I'm reading quite a bit of it, that the second point raised
08:31 under the first ground of appeal was that the mere filing of an application for interim
08:36 injunction was not sufficient reason to debar a chief from performing the functions of the
08:42 office as held by the trial court. Counsel for the respondent was of the view that if
08:51 the chief was not restrained automatically upon being served with an application for
08:56 interim injunction, he may alienate stool property so that by the time the motion is
09:03 finally disposed of, he might have dissipated most of the stool properties. At the court
09:10 below, the respondent's counsel relied on the case of Ex parte Alute. The full title
09:17 and citation of that case is Republic v. Moffat and others. Ex parte Alute, 1971. And we have
09:25 read it to you so many times to say that once an application is filed, you stop. You don't
09:31 take a step. If you take a step, you'll be punished for contempt. It seems it is this
09:38 authority, this is the court speaking, it seems it is this authority that has been relied
09:43 upon for the argument that once a person has been served with an application for interim
09:49 injunction, he must cease performing the act for which the application has been brought
09:55 else he is automatically guilty of contempt. I think it's about time we put such arguments
10:03 and believe to rest. That case did not in the first place purport to lay down any hard
10:09 and fast rule that a person served with an application for interim injunction commits
10:14 contempt of court if he does that very act for which the application has been brought.
10:21 Moreover, the court was careful in emphasizing the point that it was only conduct that was
10:27 likely to bring the administration of justice into disrepute or interfere with any pending
10:34 litigation that was contempt of court. In that case, the court came to that conclusion
10:40 because of the fact that before the application could be heard, the very act for which the
10:46 application had been brought to prohibit had been performed. How do we move on from here?
10:55 I agree with you in the Ex parte Peko case. I would want us to situate it in the proper
11:02 context. The case I just read, a portion of which I just read to you, is the Republic
11:07 versus Nana Kru Peko II, Ex parte Nana John Ezoa.
11:17 Now every issue, as lawyers know, must first be situated in the context of the case. Sometimes
11:24 it is true as lawyers. Like they say, no matter how thin you slice a bread, there will always
11:30 be two sides. So two lawyers can have different interpretation and application of a particular
11:37 case. But at the end of the day, you must read the ratio as a whole. Now you would see
11:43 that the emphasis of this ratio, and I believe it's a court of appeal decision by Benin
11:48 J.A., is that you do not say that the mere fact that somebody has been served with an
11:56 application for contempt does not mean that the person is restrained from doing what the
12:03 person, the application for contempt is seeking the person to do. Last week, I emphasized
12:10 that the reliefs that are endorsed on the application for contempt is very key. Second,
12:16 whether or not the conduct of that person would be deemed to have taken away the judicial
12:23 authority that Article 125 puts in the court. Now what did the application for contempt
12:29 in the Peko case seek to do? In the Peko case, the applicant, the person who has applied
12:34 for contempt, filed an application for interim injunction, which in the context of the Chieftaincy
12:40 Act was allowed, they don't use the word interlocutory then by that law, 1970 law. Now they said
12:48 that they want an order to restrain the person from acting as a chief. Now there are two
12:57 different things. In the Alote case, the Mofat, the judge said that the application was to
13:03 prevent them from outdooring him as a chief. And this Peko case was to restrain him from
13:12 acting as a chief. Now if you read the entire case, you see that the case itself was dismissed.
13:19 The original case was dismissed because they only filed a statement of case without adding
13:24 a rate of sum. So the court first said, your rate itself is defective, we won't cure it.
13:31 So your interim injunction application itself, you can't put something or nothing and expect
13:36 it to stand. Be that as it may, under the Chieftaincy Act, and if you go further in
13:42 that issue, they made reference to it, unlike the normal causes of action. In the normal
13:48 cause of action, we know that filing an appeal, a notice of appeal, does not operate as a
13:53 state of execution. We all agree that under that civil procedure, if you file a notice
14:00 of appeal, it does not operate as a state of execution. However, in the Chieftaincy
14:05 Act, under that law, that time, if the House of Chiefs ruled that somebody is disqualified
14:13 from being a chief, and that ruling came after the person has been enrolled as a chief, once
14:19 the person files a notice of appeal, it operates as a state, which is different from what we
14:26 know. Now, what is the reason for that? Because they believe that there is the public interest
14:33 that you do not want a vacuum in the chieftaincy affairs of a particular people. And so, if
14:39 you say that at a point in time there is no chief at all, you are leaving room for chaos.
14:46 And last week, you remember I mentioned that in an application for injunction, even if
14:50 you prove a legal interest or an equitable interest, the court will look at the balance
14:55 of convenience to see if it is equitable, looking at the facts of this case. So the
15:03 court refused the application for contempt, to commit for contempt in this case, because
15:09 they said your application for interim injunction was seeking an order to restrain the man from
15:16 acting as a chief. He had already been enstooled. In the Alota case, he was about to be our
15:24 dog. Yes. So that is the difference. And so, and Albert made that point, that once you
15:30 are served in an application for injunction, the status quo must be maintained. And so,
15:37 if at the time you file the application for injunction, the person was already enstooled
15:42 as a chief, and you are saying that you want him to be restrained from carrying out his
15:47 duties or from acting as a chief, you are not asking for a reversal of the enstoolment
15:53 process. Then you are leaving a gap because he's been enstooled. So it's not as if the
15:58 judge can act because there is an... So the court said, to maintain the status quo, he
16:05 was a chief. Yes. So he stays as a chief. As a chief. Until the application for injunction
16:10 has been determined. Yes. Thank you. Unfortunately, in that case, everything was struck out. Now
16:14 let me just give this analogy. Right. Last week, I used the example of the house, you
16:19 and I, litigating over a land. If you had finished constructing the house, and you were
16:25 staying in the house, and I file an application to restrain you from trespassing onto my land,
16:33 does it mean that by that application, you cannot go into your house? That was the question
16:39 that the judges, in another way, were asking in this Percool case. Because at the time
16:45 I filed the application for injunction, you had already completed the building, you were
16:48 living there. Okay. So if I serve you an application for injunction, asking for an order to restrain
16:54 you from trespassing onto my land, it means in effect what I'm asking the court to do
17:00 is to prevent you from going home when you close from work. That is not the purpose of
17:05 injunctions. It is an equitable relief. And so it cannot be used to achieve an end that
17:12 is contrary to law. Right. And in the National Lottery's authority, the Supreme Court said
17:18 that a court cannot grant an application for injunction that defeats a statute. Okay. And
17:24 so in the Percool case, the interim application for injunction, if it was granted by the court,
17:30 would have defeated the Chieftaincy Act. Right. That was why the court distinguished the cases
17:36 and said do not make a generalized position that in this particular instance, there is
17:41 a specific statute that preserves the status quo of a chief even when he files a notice
17:48 of appeal, which is different from all the ordinary causes of actions that we practice
17:53 or the procedures we know of. Thank you very much. And on the same matter, we will come
18:02 and refer to what others have said, that that is why they say if an application for injunction
18:10 is filed and served on you, and you go ahead and do the thing that the application is trying
18:18 to stop you from doing before the application is heard, you may not be liable for contempt
18:25 because it is only an application. It is not a court order. And for example, people read
18:32 Ex Particito and they say the court set out grounds. One, that there must be a judgment
18:39 or order requiring the person to do or abstain from doing something. Two, that it must be
18:47 shown that the person knew what precisely was expected of them to do or to abstain from
18:55 doing. And three, that it must be shown that the person failed to comply with the terms
19:01 of the judgment or the order and that disobedience was willful. And some say unless you can establish
19:13 that this has happened, you can't say somebody can be in contempt of the court simply by
19:19 an application before the court. We will come to that proper.
19:25 So, how do you use this case to explain to anybody that your position is what the law
19:34 affirms? You mean the Ex Particito case? No, the Nanaa Krupeku case. Alright, so like our
19:46 copy said, that case is supposed to be treated as an exemption rather than as a rule. And
19:54 I would say this, that that particular case has not been followed by any court. There
20:00 is no judicial precedent apart from this case where someone has been served with an application
20:05 for an injunction. He has gone to do the very act that the application seeks to injunctive
20:11 and the court had allowed him to go on spot free. So if you are a lawyer and you rely
20:15 on this case to advise a client to proceed with what he's doing after he has been served
20:22 with an application for an injunction, you're putting yourself at a risk.
20:26 Number two, this is a court of appeal decision. It is not the decision of the Supreme Court.
20:32 And as such, this decision does not override earlier decisions pronounced upon by the Supreme
20:38 Court. Last week, I took time to run us through some cases of the Supreme Court, where the
20:44 Supreme Court has emphatically said, if you are aware and go ahead to do the very act
20:50 that you are seeking, you are to be prohibited. It amounts to content. Lawyers will tell you
20:55 where a decision of a court of appeal conflicts with a decision of the Supreme Court, the
21:00 decision of the Supreme Court prevails. Number three is that the purpose for which you are
21:06 to stop the very act you are doing upon being served with an application for an injunction
21:12 is to preserve the status quo. Like Bobby Bouncy Randy stated, the status quo at the
21:18 time the application for interim injunction was served on the chief was that he was a
21:23 chief. So preserve the status quo means wait for it to be determined. And whatever is happening
21:30 should continue. So if he's a chief, he has to continue to perform his duties as a chief.
21:36 Right. So hold on. What you just said, this is what the court said in very plain word.
21:40 You have actually said it, but let me just read it for the purposes of, you know, affirming
21:45 it. The court said, and if the status quo is to be maintained pending the hearing and
21:54 determination of the appeal, then it means the applicant would remain the chief and perform
22:01 his functions until it has been decided. Otherwise, go on, please.
22:07 So the rule still remains. Ex parte. Nanak Bupeko is an exception. It has not been followed
22:15 by any courts. It has not been overruled by any courts. So if you follow it, it's at your
22:21 own risk. We should also note that if you read the case of Liberty Press, the court
22:25 says that contempt is a tool for the court to guard against its own parts. And as such,
22:31 it should be exercised rarely. As we proceed, we discuss that contempt is of two forms,
22:36 criminal contempt and civil contempt. For criminal contempt, the court exercises it
22:42 only when there is an attempt to undermine the authority of the court. If I am a chief
22:50 and I'm served an application for an injunction and I continue to remain a chief, that is
22:54 not contempt. Now, because in that case, they've got these two main charges against the chief,
22:59 that means by that very act, they are acknowledging the fact that he is a chief. So once he is
23:04 a chief, he cannot be restrained by just an act of serving him with an application for
23:09 an injunction. And the status quo at that time was that he was a chief. Let me say,
23:14 there is a clear distinguishing factor between that case and MoFAT. And the court clearly
23:19 indicated in MoFAT, the person was yet to be outlawed as a chief. So the status quo
23:26 at that time was that he was not a chief. He had not been outlawed. So if you are served
23:33 with an application for an injunction, maintain the status quo, don't outlaw him. If you outlaw
23:38 him, that amounts to contempt of court.
23:41 - Thank you. And-
23:42 - Let me also refer you to the case of, we just want more.
23:46 - Go ahead.
23:47 - The Sikin and others, ex-party, Togobo and others. This is also by the Court of Appeal
23:53 and it's reported in 2003-2005, Wangana Law Report 329. In that same case, decided after
24:01 this case that we are discussing, someone was served with an application for injunction
24:06 to restrain himself and others from installing somebody as a home affair of outlaw. They
24:15 proceeded to install the person and the court said that you are in contempt of court because
24:20 you are aware that there's an application pending in court against you. So people should
24:24 not quote Kru as a rule. Kru is an exception, ex-party is a rule.
24:30 - Right. And as you mentioned, and Bobby also mentioned earlier, everything put aside. In
24:39 this matter, the court also says you cannot say once the person is served, they should
24:46 cease performing their job as a chief. Because if you look at the Chieftaincy Act, as you
24:52 mentioned, and the court referred particularly to section 27 of the Chieftaincy Act and said
25:01 that, quote, this is what the provision says, "An appeal to the National House of Chiefs
25:08 or to a regional house of chiefs shall operate as a state of execution of the judgment or
25:14 other appealed against and any other made consequentially upon it unless the appellate
25:21 tribunal otherwise directs." And the court said, "It is to be noted from this provision
25:28 that even where a chief has been found liable on a charge to destool him, the law says that
25:36 if he decides to contest it on appeal, he should go on to perform as a chief whilst
25:43 the appeal is going on unless the appellate court or tribunal decides otherwise. If in
25:51 a situation where a chief has been found liable to destoolment charges, the law permits him
25:57 to continue to perform the functions of his office, how can the mere filing of an application
26:03 for interim injunction operate to restrain him from performing the functions of a chief?"
26:11 Thank you very much for the distinguishing, the difference in this and the allotted that
26:18 you have made. Now we will go to the famous ex-partecito, which other lawyers also have
26:29 quoted and particularly the first ground that the court set out. It said, "There must be
26:39 a judgment or an order requiring the person," I'm putting person for the education of our
26:47 audiences because it refers to contemino. "There must be a judgment or an order requiring
26:53 the contemino, that is the person, to do or abstain from doing something." So if you file
27:03 an application for injunction and you bring me a copy, that is not an order, that is not
27:10 a judgment. Why are you saying, "If I don't stop what I'm doing, I can be cited for contempt
27:15 and I'll be held for contempt." When this case says that to hold somebody for contempt,
27:22 the person, you must first show that the person, there's a judgment or there's an order that
27:27 requires them to stop or not do something but which they have done.
27:33 Well, again, every issue must be read in this context. In the ex-partecito case, the application
27:41 for contempt was not based on the fact that the respondent or the contemino had gone ahead
27:50 to act or to do something when there was a pending application. That is the first--
27:57 A pending application for--
27:59 To restrain him from doing that one.
28:00 Thank you.
28:01 So in the ex-partecito, the application had actually been heard and the person had been
28:07 ordered to return the blood to a certain family house.
28:12 That's right.
28:13 So at that point, it was no longer a pending application. It was an order of a court. And
28:19 so the ratio by this court, there was not considering whether there was a pending application.
28:25 If there was a pending application, I'm sure the judges would have expanded their ratio
28:30 to cover it. We know in practice, you have times when Supreme Court gives a ratio, then
28:36 it seems to be applied in a different context. Then they say, "No, no, no." Because the facts
28:41 were different, that is why we give that ratio. So the first distinguishing factor is that
28:46 the contempt that we've been discussing from last week is contempt when there's a pending
28:50 application restraining you from doing something which you go ahead to do. But in the ex-partecito
28:56 case, the application had been heard and the contempt had been ordered to return the blood
29:02 to-- Now, I believe the order was made sometime in '88 or '87. The person returned the blood
29:09 to in 1998. In that 10-year gap, the applicants did not complain.
29:15 Yes. He didn't complain. He was happy with the
29:18 status quo because when the court gives an order, you must enforce it. And if you do
29:23 not enforce that order by any of the known means of enforcement, once the person complies
29:28 with the order, the order has been discharged. So the court making that first rule that there
29:34 must be an existing order, short to say that in the context of that case, there was no
29:40 existing order because at the time you brought the application to commit them for contempt,
29:46 they had discharged the order by complying with it, even though they only complied with
29:52 it after 10 years of the order when you did not take any step to enforce it.
29:58 One thing that I also want to draw attention to is that that decision was in 2001. You
30:05 know that under the new rules, 2004, the CI-47, if the court makes an order for you to do
30:11 something, even if the court does not give timelines, there's an automatic 14 days. That
30:17 was absent in that law at that time. And so at that time, once the court said return the
30:22 blood to without giving timelines, you, the beneficiary of the order, had to enforce it
30:29 when you want, or it left the person to whom the order was directed to, to enforce it whenever
30:36 or to carry it out whenever he wanted, unless there's judicial force applied. So the statement
30:42 by the Supreme Court in the C2 case, that to commit somebody for committal for contempt,
30:48 there must be an order, that statement is made in the context of the fact that at the
30:53 time the application for committal for contempt was brought in the C2 case, the respondents
30:59 had already complied with that order. And so there was no longer an order that they
31:03 had flouted. And so that is different from the scenario that we have been discussing
31:09 where there's a pending application restraining you from doing something, which you go ahead
31:15 to do it. And for all the reasons that we have given that, it will mean that you are
31:19 taking the law into your own hands and then denying the court the order.
31:23 And in the reference you make to the year for this case, which is two, three years before
31:31 we made the rules, CI47, which you have written about, in that context, a judge of the Supreme
31:40 Court said, this is the kind of contempt, that is the expertality kind, which says that
31:52 this is the position that has now been codified under order 50 of CI47. So I go back to Albert,
32:02 will you repeat that plainly, a lawyer will be misadvising or giving ill advice to their
32:10 clients when they refer to this matter and said, the court has even said that for you
32:17 to be punished for contempt is not when an application has been brought to you, it must
32:22 be that you have seen an order and then you disobeyed it. What will you say?
32:27 So contempt is in two forms. We have what is called criminal contempt and we have formal
32:36 contempt. In the MUTIER 3 case, the court said that criminal contempt is a criminal
32:42 offense. And that was why the president could grant presidential pardon for persons who
32:47 were convicted for criminal contempt. The court defines criminal contempt as all matters
32:53 that bring the administration of justice into public ridicule and hatred or interfere with
32:59 the administration of justice. That is criminal contempt. Civil contempt relates to disobedience
33:06 of a lawful order of a court. So if you disobey an order of a court, it is civil contempt.
33:12 Lawyers call it quasi-criminal because you can suffer imprisonment as a punishment. But
33:18 criminal contempt is a crime and established as a crime under Article 1912 and Article
33:24 126. So once a court finds you guilty of a criminal contempt, you carry a criminal charge.
33:30 Now when an application is pending before a court for injunction and it is brought to
33:36 your notice and you disregard it and do the very act, you commit criminal contempt because
33:42 you are doing an act that is to undermine the administration of justice, that is to
33:47 bring the administration of justice into public ridicule. The case of Ex Particito does not
33:53 border on criminal contempt. Ex Particito borders on civil contempt. And like Bobby
34:00 Barsett-Renly stated, it has to do with an alleged order of the court which has been
34:05 flouted. That has nothing to do with criminal contempt. The rules that we discussed last
34:11 week and today border on criminal contempt, interfering with the administration of justice.
34:19 The rules in Ex Particito does not apply. Ex Particito is when someone alleges that
34:25 an order of a court has been made, it has been brought to your attention and you have
34:29 flouted it. So that if you are only served with an application for an injunction and
34:34 you go against it, the rules in Ex Particito does not apply. But the rules for general
34:41 undermining the administration of justice, interfering with the course of justice will
34:44 apply. And in my view, the punishment for that is much more heavier than that in civil
34:50 disobedience. Because in civil disobedience, even though you can go to prison for it, the
34:55 Supreme Court says it does not carry a criminal tag. But if you go to prison for criminal
35:00 contempt to an ex-convict, you have a criminal record. And as such, it is much more serious
35:07 to disregard an application for an injunction served only in my view, than to even disregard
35:13 an order of a court which has been served on you. Because one carries criminal connotation,
35:18 the other does not. So that is how I would situate the Ex Particito case. It should not
35:24 be treated generally as the rule on contempt, because it borders only on civil contempt
35:29 and not criminal contempt.
35:30 - Samzin, if I could just add--
35:32 - You raise a serious issue here. You raise a very serious issue here that will get people
35:37 setting up. That for not being patient, to wait for a process to be exhausted, and you
35:48 proceed, and if you are cited for contempt and you are held accordingly, you are carrying
35:54 the tag of an ex-convict.
35:55 - Oh yes. And all the restrictions that come with being an ex-convict in the Constitution
36:02 would apply to you. Because no matter how the process began, once a court finds you
36:10 guilty of that charge, for lack of a better word, even though it arises from a civil action,
36:18 you would be in prison. I think at a point there was a challenge by, I've forgotten the
36:25 case, in the Supreme Court, where the argument was that because of the consequences of this
36:31 kind of contempt, it should only be commenced by the Attorney General. And the Supreme Court
36:36 said, yes. The Supreme Court said, no, no, no, because--
36:38 - As a liberty press.
36:39 - Yes. It will arise from civil actions. You cannot burden the Attorney General with all
36:44 of these things. There are some that you would have criminal court provisions that the Attorney
36:49 General can take it upon himself. But if I am in a civil action against you and you bring
36:55 an application for contempt, the court finds me guilty. The court sends me to jail. It
36:59 is as if I have been put in jail. The same tag of a misdemeanor if you are put in jail
37:05 with all the consequences that come with it is on my head. It's serious.
37:09 - Serious. You're going to say something. And we're going to open the phone lines for
37:14 you shortly because I promised you that we'll do that. Very shortly we are going to do that.
37:18 So get ready. Any questions that you have about the discussion, please don't go beyond it.
37:25 We're talking about injunctions that could lead to contempt, injunction applications
37:29 that could lead to you being found guilty of contempt and what all of that means. My
37:34 guest will also share with you when you are found guilty of contempt, what are the possible
37:41 punishments or sanctions that you suffer? We don't intend here on the show to scare you.
37:50 We are only giving you legal education. Thank you.
37:55 - Well, the CITO case, I was saying that even the CI 47, there's a provision I believe in
38:04 order 44 or so that situates this first ratio or first holding may be deemed to have seemed
38:12 to have been modified by that provision. There's a Supreme Court decision, but there's more
38:17 recent one by justice that Jennifer Darcy. She is not a court of appeal, but while she
38:22 was sitting at the high court, it's also where she clarified that position that these days
38:30 under CI 47, if there is an order of a court asking you to do something or restrain from
38:38 doing something, and then you proceed to flout that order, the person who intends to cite
38:46 you for contempt must serve you with a penal notice first. And I see that it's not very
38:54 common practice, but it's there. And they've started enforcing it because the penal notice
39:00 is to let you know the seriousness of what you are doing. And that it is sort of a last
39:06 warning for lack of a better way, because this time it is not a pending application.
39:11 It is an order of a court. So if you do not comply with the order of the court restraining
39:17 you from doing something or asking you to do something, the other party is required,
39:22 it is a sha, to serve you with a penal notice that I am reminding you that this court made
39:30 this order on this day, and you are still flouting it. So if you continue, then I'll
39:35 proceed to cite you for contempt. So if you still proceed after having been served with
39:40 a penal notice, and the person files the application for contempt and attaches evidence of the
39:46 service of the penal notice on you, then you have no excuse.
39:50 Okay, so we will shortly get into what are the possible sanctions when you are found
39:56 guilty of contempt, possible sanctions for disobeying, for not waiting for an injunction
40:05 application to be heard. Ahmed, you are online, you are calling from Tamale, is it?
40:11 Hello? Good afternoon.
40:14 Good afternoon. Good afternoon. What's your name?
40:17 Ahmed Mubarik from Tamale. Ahmed Mubarik, please go ahead with your question.
40:22 Okay. Yeah, if you serve somebody for contempt, while you are in the process of performing
40:30 that duty, if you have to stop or you have to continue the program, that's my question.
40:37 You said if you serve somebody with what? An application for committal for contempt?
40:41 Yes, and it's in the process of doing that duty. So you have to stop or you have to
40:48 continue the program. All right. Thank you very much for your
40:51 question. The phone lines are now opened. Actually, I think he called before we opened.
40:56 They are now open. You can call and ask your question. You heard him. You heard Ahmed.
41:00 Yes. It's a very good question he asked. Once there is an application for committal
41:04 for contempt is served on you, and there's evidence that you've actually engaged in that
41:09 act, some judges will rely on the common law principle that you must pledge your contempt
41:15 before you are even heard. It just shows you how serious it is, that you don't even have
41:20 a right to be heard in court until what you are being cited, committed for. If there is
41:27 primacy evidence, you have stopped it. So for instance, if you were restrained from
41:32 going onto a land, and after you were served with the order and everything, you go and
41:37 put your tractor or your car on the land, and the committal for contempt affidavit shows
41:41 that evidence, the court may decide not to even hear your position. And as you go and
41:47 remove that car from that land, before you come to stand in court.
41:50 That's what you mean by pledging yourself? Pledging yourself of the contempt. So is
41:54 that serious? That you must immediately cease and reverse what you have done if possible.
41:59 Other than that, all those things may be factored in by the judge when he's passing his sentence.
42:05 Okay. Richard, you are calling us from Obwasi. What's your question?
42:08 Good afternoon, Samson.
42:10 Afternoon.
42:11 My question is that, is there any difference on the injunction of the judges served on
42:18 the EC against the limited voter registration exercise, which they defied and went ahead
42:22 with the exercise, as compared to the injunction application served on the democracy hub?
42:28 General, they defied them. The police arrested them. The EC defied this injunction application.
42:38 They were served with contempt. They practically judged the service of the contempt.
42:48 But similar groups carried out a similar thing and they were arrested.
42:57 I think there's a selective justice here.
43:00 Thank you for your question, Richard. But as we announced last week, we are unable to
43:08 answer directly to the question of the EC situation. Because as you already know,
43:14 the EC has admitted that they have been served with the court processes as an injunction processes.
43:20 And the EC through their lawyers have actually written to the lawyer for those who are
43:25 in court to receive processes. And we understand it's injunction and also contempt.
43:32 So let's allow the court to deal with that. I'd like Bobby to share briefly on the
43:39 prohibition application served on the occupy Jolobi house people. That one is over. There's
43:48 nothing pending in court. So we can... I think it's withdrawn there. I read somewhere this morning.
43:54 Police said it's withdrawn there in January. But first, let's hear Lizzie. Lizzie, you are
43:58 calling from Teshi. Let's hear you. Hello, good afternoon. Good afternoon.
44:01 Please, I want to find out if there is a case in court. There has been a judgment already and
44:09 immediately after the judgment, there was an appeal. Can the person go on with whatever
44:15 was the judgment was moved for? Or we have to hold on for the appeal to
44:21 end before any process can happen? Okay. So when the appeal was filed,
44:28 have there been any other processes? There's a particular process called stay of execution.
44:35 No, please. Nothing like that has been filed? Yes. Yes. All right. Thank you very much.
44:40 When the person continues, does that amount to content for...
44:45 All right. Thank you. Thank you. So let's start from Lizzie.
44:50 Yes. Like when we're discussing the case, we said that in civil procedural practice,
44:58 the filing of a notice of appeal does not mean that the judgment that you're appealing against
45:03 should be suspended or stayed unless the judgment that is the person who lost the case
45:09 specifically goes to the court to make an application that the judgment should be stayed.
45:16 And if that application for stay of execution is served on you and you proceed to execute the
45:24 judgment, you will be in contempt. Okay. Because the application for stay of execution,
45:29 just like the other applications for injunctions we are discussing, means that your hands are tied
45:34 until a court determines that pending application itself. So if there's a judgment in your favor
45:41 and the other party has only served you with a notice of appeal, but has not filed an application
45:46 for stay of execution, or depending on the circumstance, if there's an executable order,
45:52 injunction pending appeal, then you are allowed to go ahead and execute your judgment
45:57 until you are served with that notice. So Lizzie, the advice to you is that there is nothing stopping
46:02 you from enjoying the fruits of your judgment. There's an appeal against the judgment that you
46:11 have gotten. The person who has appealed must go forward to file another process that stops you
46:18 from enjoying the fruits of your judgment. Otherwise, there's nothing wrong. You cannot
46:23 be cited for contempt. Albert, you are calling from official town, Odoko. Let's hear you Albert.
46:30 Yes. My question is, the case with regards to Mr. Peter White, his contempt case.
46:40 Which case? Which case? Mr. Peter White.
46:45 I don't know about it. He was, he was set for contempt.
46:49 Ah, all right, all right, all right. I get it.
46:52 You see that he was called before the court, and the court initially, he was convicted.
46:57 The court convicted him, but later he was pardoned. So I want to find out whether that case,
47:03 whether that conviction aspect is still stand, or because he was pardoned, he can maybe go ahead
47:10 and later maybe going forward, he can run for a position. That's my question.
47:16 Thank you very much for your question. We had a question pending from Richard in Obuase,
47:22 and we said we couldn't deal with the EC matter, but at least the one with the police prohibition
47:27 matter. So his question is straightforward. The police filed it. And if we agree that the
47:37 police have saved the Occupy Democracy Hub people, could they have been gone there to do what they
47:45 were doing, even though they denied that they were safe? Yes, so for me, that whole matter depends
47:50 on the evidence of their service, probably so-called. But if indeed they were served with
47:56 the notice for injunction, I believe that they would have been required not to proceed with the
48:01 injunction on that day. And it will not be something strange. The minority, when they
48:06 originally intended to proceed on the Occupy Bank of Ghana, which is coming on this coming
48:12 tomorrow, no this week, you know, sometimes this week. I'll confirm that. Yes, they are not
48:17 advertising. It's a legal clinic. It's not for the politics. Yes, yes. So when they were served
48:24 with the injunction application by the police, they did not go ahead. They then went back to court
48:30 to go to that process. So it is not as if it is something new that is being said. If indeed
48:35 the police filed it and served them, then the Democracy Hub would have been required by law.
48:41 The major concern, and let me flip that to Albert, I understand Albert is back on, we lost
48:47 you momentarily. The flip side of that is, the major concern of that is, if they were indeed
48:56 served by the police, the two of you have agreed that once you are served, you don't take a step.
49:04 Now, if they were indeed served and they took the step, was the police right in their approach?
49:12 Because the police issued a letter saying that they are enforcing the application. Yes, Albert.
49:19 All right, so my view is that under the Public Order Act, once the police feel that for some
49:28 reasons you cannot have the demonstration, they serve you with the notice, then they are supposed
49:33 to report back to the police, indicating whether you comply with it or not. Once you indicate that
49:38 you are not complying with it, then the police will have to go to court to apply for an exemption.
49:43 We have given further information to the effect that once you are served,
49:51 until otherwise determined. So I will make my argument on the backdrop that they were indeed
49:57 served as the police indicate. Now, once you are served, then that means the demonstration that
50:04 you are embarking upon is contrary to public order. Because now there is a detention to restrain you.
50:10 I've heard arguments of people saying that, why don't you allow them to embark on the demonstration?
50:15 Then thereafter you cite them for contempt. One thing we are supposed to know is that the police
50:20 is responsible for the protection of public property. They are responsible for public order,
50:26 public security, and for peace. And as such, the police should not fold their hands for anything
50:32 wanting to happen. Then thereafter they proceed to court for contempt. In that circumstance...
50:38 Their statement said that they were enforcing that application.
50:43 No, the police do not have the power for that, I would disagree. The police do not have the power
50:49 to enforce contempt for it on behalf of the court. There are two things against criminal contempt,
50:54 like I explained. It is only the Attorney General or the Court Sumo II that can invite the people
50:59 for contempt. If it is civil disobedience, the police will cite the organizers for contempt.
51:04 But I feel if the argument had been that the police were entailing public order for the safety
51:10 and security of the people and property in the area, then I feel that they would have the right basis
51:15 for doing so. But the police is not mandated to enforce contempt.
51:22 The next question, we have very limited time now, as I prompted you ahead. So what are the consequences
51:30 if you are found guilty of contempt of the court?
51:34 So there are several possible scenarios. If it is depending on the nature of the contempt.
51:43 So there are some contempts that are in the face of the court. You are in the courtroom, you do
51:49 something, you see, for example, you are not allowed to record court proceedings. So if you go to
51:55 courtroom with your phone and you record court proceedings, that is contempt of court. And the
52:00 court, the judge there and then, has seen you doing it. The judge can decide to imprison you,
52:06 ask you to go in for three days, five days, or caution you, let you sign a bond to be of good
52:12 behavior. If the contempt arises out of a civil action, the court has an obligation or has two
52:20 options, either to grant the application or dismiss the application for contempt. If the court dismisses
52:26 it, it means you are not guilty. If the court grants it, the court can now have the discretion
52:31 to decide the kind of punishment. Like I said, in the COVID times, there was a general policy
52:36 not to put people behind bars because of the prison contempt. But we know that depending on
52:41 how the court thinks that, for example, if you were served with a penal notice and you still went
52:46 ahead to do, the court will think that, okay, you have decided just to disrespect the courts. The
52:51 court may decide to put you in prison or order you to pay a fine or just a mere caution. So it's all
52:58 at the discretion of the judge. In some of the cases, and I think one caller made reference to
53:05 Pesa White's case, if you are lucky and the court's role motive says that you've said something on air
53:12 that is disparaging or against the dignity of the court, if the court convicts you of contempt,
53:20 the conviction alone makes you guilty of contempt. You are an ex-convict. Once the court convicts you,
53:28 you are an ex-convict. After the conviction, the court may decide not to even put you in jail.
53:33 That is sentencing. So you can be convicted and not sentenced to imprisonment. But that does not
53:40 take away the fact that you are an ex-convict. So that if the court thinks that you have appeared
53:46 before them, you have learned your lesson, I think, say John, it happened to say John,
53:51 they will decide to drop, for lack of a better word, drop their charges. So whatever they would
53:56 have achieved just to let you know that they exist and they have the power to commit for contempt
54:01 would have been achieved. But once there is the conviction, and even if there is no sentencing,
54:08 you still become an ex-convict. So it could be from a fine, a bond to be a good behavior or
54:15 prison sentence. Right. And that brings us to the question that somebody had asked, and I think we
54:21 hadn't dealt with that, the Pesa White one. So in that case, he had appeared before the court
54:29 and initially pleaded not guilty. Then later he changed his plea to guilty with explanation.
54:39 Then he changed it again to guilty simplicita, that I'm guilty. Once he did that, the court
54:47 convicted him on his own plea of guilt. Remember before he appeared before the court, he has sought
54:54 to do what you said, paid himself of the contempt, issued statements saying that he didn't intend to
55:01 and he would never do such a thing. Right. So the court convicted him on his own plea, but the court
55:07 decided not to sentence him. Correct? Right. Following his apology and retraction, the court
55:18 therefore had mercy on him. There were mitigation things put in and so on and so forth. The question
55:27 the guy was asking is, does that make him an ex-convict, which disables him from taking,
55:39 you know, like the offices or positions where the law says you should not have been a convict.
55:47 I want to think so. Because that was criminal contempt. Yes, that was criminal contempt. And
55:52 you have explained together with Jenfi that criminal contempt, once you are found guilty,
55:56 it is like, all right. Especially when those offenses are put in such a, you know,
56:06 I described in the constitution in a manner that your actions are deemed, I think there was some
56:10 morality, offense of morality, things like that, that have been mentioned there. So I want to think
56:18 so. Without the benefit of the full fat sitting here, I want to think that once he was convicted
56:25 on that criminal contempt that was initiated by the court itself, then he may be deemed to have
56:36 been an ex-convict on grounds of offenses that may bother on those lines that restricts
56:43 his public office to a larger extent. So, listen to him carefully. May and may. Thank you so very
56:52 much. Unfortunately, Albert's line keeps dropping and just dropped a while ago. Albert Jenfi is a
56:58 law lecturer and also an author of legal texts. Bobby Banson right here in the studio is a law
57:03 lecturer and author of legal texts on civil procedure in Ghana. We were dealing with,
57:10 we dealt with, gave you education on injunctions, how to avoid contempt of court. This has been part
57:17 two. I'm Samson Ladia Yeneni. This has been The Law. It's your legal light. It's your health law.
57:24 Join us again next time for an interesting legal clinic. Have a good afternoon.
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