The Concept Of Contempt Of Court In Ghanaian Legal Jurisprudence

Obedience of court orders is not optional. Rather it is mandatory. Thus, no one has a choice in the matter. Contempt simply means “when someone disobeys a court order, shows disrespect for the judge, or disrupts judicial proceedings”. In legal terminology, contempt refers to any wilful disobedience or disregard of a court order or any misconduct in the presence of a court or an action that interferes with a judge's ability to administer justice or that insults the dignity of the court. A concise and often quoted definition of contempt is found in R. v. Gray [1900] 2 QB 36, at 40 where Lord Russell of Killowen, C.J. offered the following:

Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done, or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Court is a contempt of Court.

In addition, it is an act which is done to humiliate, hinder, or thwart the court in the administration of justice, or which is calculated to lower its authority or dignity, either in the face of the court or outside of the court.

THE CONCEPT OF CONTEMPT OF COURT ACROSS THE WORLD

The Black’s Law Dictionary defines contempt as a “conduct that defies the authority or dignity of a court or legislation”. Contempt of court is a broad common law doctrine. The law of contempt is essentially concerned with interference with the administration of justice. Contempt was plainly defined by Lord Diplock as:

[A]lthough criminal contempts of court may take a variety of forms, they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.

Let us now examine the contempt laws in some countries:

Canada:

In Canada, contempt of court is an exception to the general principle that all criminal offences are set out in the federal Criminal Code.

The Canadian contempt of court includes the following behaviours:

1. Failing to maintain a respectful attitude,
2. Failing to remain silent or failing to refrain from showing approval or disapproval of the proceeding,
3. Refusing or neglecting to obey a subpoena,
4. Wilfully disobeying a process or order of the court and interfering with the orderly administration of justice or impairing the authority or dignity of the court.

Under the Canadian Federal Court Rules (Rules 466 and Rule 467), a person who is accused of contempt needs to be first served with a contempt order and then appear in court to answer the charges. Convictions can only be made when the requirement for proof beyond a reasonable doubt is achieved.

If it is a matter of urgency or the contempt was done in front of a judge, that person can be punished immediately by the judge. Punishment can range from the person being imprisoned for a period of less than five years or until the person complies with the order or fine.

England and Wales:

In English law on contempt (the Contempt of Court Act 1981), the maximum sentence for contempt is two years.

Disorderly, contemptuous, or insolent behaviour toward the judge or magistrates while holding the court, tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted as "direct" contempt. The term "direct" means that the court itself cites the person in contempt by describing the behaviour observed on the record. Direct contempt is distinctly different from indirect contempt. The latter requires another person to file papers alleging contempt against a person who has wilfully violated a lawful court order.

Criminal contempt of court:

The British Crown Court has power to punish for contempt of its own motion when it notices disobedience of a court order or breaches of undertakings to the court. Where it is necessary to act quickly, the judge (even the trial judge) may act to sentence for contempt. Where it is not necessary to be so urgent, or where indirect contempt has taken place the Attorney General can intervene and the Crown Prosecution Service will institute criminal proceedings on his behalf before a Divisional Court of the Queen’s Bench Division of the High Court of Justice of England and Wales.

The Magistrates’ Courts are not superior courts of record, but nonetheless wield contempt powers under the Contempt of Court Act 1981. Under the law, a Court may detain any person who insults the court or otherwise disrupts its proceedings until the end of the sitting. Upon the contempt being either admitted or proved, the judge may imprison the contemnor for a maximum of one month, fine the contemnor up to £2,500, or do both. It is contempt of court to bring an audio recording device or picture-taking device of any sort into an English court without the consent of the court.

It is not contempt of court (under section 10 of the Act) for a journalist in Britain to refuse to disclose his sources, unless the court has considered the evidence available and determined that the information is "necessary in the interests of justice or national security or for the prevention of disorder or crime.”

Strict liability contempt in England

Under the Contempt of Court Act 1981, it is criminal contempt of court to publish anything which creates a real risk that the course of justice in proceedings may be seriously impaired. It only applies where proceedings are active, and the Attorney General has issued guidance as to when he believes this to be the case, and there is also statutory guidance. This provision further prevents the print and electronic media from publishing material that is too extreme or sensationalist about a criminal case until the trial or linked trials are over and the juries have given their verdicts.

Civil contempt in England

In civil proceedings, there are two main ways in which contempt can be committed. Failure to attend at court despite issuance of summons requiring attendance or failure to comply with a court order. A copy of the order, with a "penal notice"—i.e., notice informing the recipient that if they do not comply, they are subject to imprisonment—is served on the person concerned. If, after the service of the notice, the contemnor still breaches the order, proceedings can be started and in theory the person involved can be imprisoned. In practice, however, this rarely happens as the cost on the claimant of bringing these proceedings is significant and in practice imprisonment is rarely ordered as an apology or fine are usually considered appropriate.

India

In India, contempt of court is of two types. They are civil contempt and criminal contempt.

Civil contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.

Criminal contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or interferes or tends to interfere with the due course of any judicial proceeding, or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Defences allowed in court contempt proceedings: Clause (b) of Section 13 of Contempt of Court Act, 1971 that was introduced recently by 2006 amendment, allows the accused to raise the defense of justification by truth of such contempt, if the court is satisfied that it is in public interest and the request for invoking the said defense is bona fide. However, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

THE CONCEPT OF CONTEMPT OF COURT IN GHANA

In the Supreme Court case of Republic v Nkansah (unreported, November 1995), Hayfron-Benjamin JSC (as he then was) defined contempt of court as “Conduct that tends to bring the authority and administration of the court into disrespect or disregard, and or to interfere with or prejudice parties, litigants, or their witnesses is a contempt.”

The concept can also be defined as the "deliberate disobeying of a court order. The conduct can occur in or out of court. In court, the conduct may also be a significant disruption of or disregard for the court. Typical examples include refusal to obey a judge or magistrate command (such as to quiet down), to refuse to answer proper questions, refusal to follow local rules, etc.”

Contempt has also been defined by the Court in the case of Republic v High Court, Accra; Ex-Parte Laryea Mensah as follows:

“By definition, a person commits contempt and may be committed to prison for wilfully disobeying an order of the court requiring him to do any act other than the payment of money or abstain from doing some act; and the order sought to be enforced should be unambiguous and must be clearly understood by the parties concerned.”

It is trite fact that, the Superior Courts have the absolute power to commit anyone who reduces the integrity of the Judiciary to the lowest substratum for contempt. Kulendi, JSC emphatically stated:

“… the powers of the Superior Courts to commit anyone for contempt have always been inherently recognized by the Courts at Common Law. In the Ghanaian legal jurisprudence, this critical power of the courts to commit for contempt has received statutory emboldenment and constitutional crystallisation. The 1992 Constitution which is the supreme law of the land and which embodies the hopes and aspirations of Ghanaian people has conferred on all Superior Courts, the power to commit for contempt to themselves.”

WHAT CONSTITUTES CONTEMPT OF COURT?

Several versions are put forward to describe what amount to contempt of court used in court and the ones provided in our penal law. Under this section, consideration has been given to definitions that are commonly used. A person may be held in contempt for many different reasons. Some of the most common reasons include:

It is not all cases of contempt relate to pending proceeding in court neither does it complain of a breach of a specific prohibitory or mandatory injunction of court. There are other forms of contempt, in Republic v. Mensa-Bonsu Bamford Addo JSC (as she then was) expressed herself as follows:

“This is the reason why the courts are given the power to commit for contempt, that is to punish any acts which tend to interfere with the proper administration of justice, or which 'scandalizes' the courts, by eroding public confidence in them or by weakening and impairing their authority. The power to commit summarily for contempt is indeed an effective but very powerful tool that must be wielded only in very clear cases. It must be noted, however, that it is not to be used from the tenderness of feeling or to vindicate any particular Judge, it is used to protect the whole administration of justice and to keep the 'blaze of glory' round the courts, and any attempt by anyone calculated to erode such confidence must be viewed very seriously and must be punished swiftly to restore the integrity of the courts which the law administer.”

It is admonishing of substantial reputation for lawyers in particular to remember always the causation contained in the case of Standard Bank Offshore Trust Company Limited v National Investment Bank Limited & 2 Ors where Benin JSC succinctly emphasis that;

“Lack of authority to sue amounts to contempt of court by virtue of order 1 r. 4 of C.I. 47, therefore this provision affords the only avenue whereby the defendant may cross check with the real claimant whether or not he has authorized the plaintiff to sue, and if not to bring a charge of contempt against the plaintiff.”

CLASSIFICATION OF CONTEMPT OF COURT IN GHANA

Generally, contempt may be classified as a civil contempt or criminal contempt.

Civil Contempt

By definition, civil contempt is disobedience of a court order. An example is refusal of a party to comply with the order of the Court for payment of money. Therefore, a person who disobeys that order could be considered as having breached a court order. The view used to be held that a person who disobeys a court order for payment of money should be punished for contempt of court. Article 14(1)(b) of the 1992 Constitution is cited as authority for this view. In civil contempt, the contemnor can "purge" himself or herself by obeying the court order or performing the Court order. From this, it was contended that a person who breached an order of the court to pay money committed civil contempt for which he could be punished. The usual punishment imposed by the court for civil contempt is a fine, imprisonment or both. A contempt proceeding, which grows out of and remains ancillary to the principal case or controversy before the court, is sui generis within our legal system. The offence of contempt of court is often described in case law as sui generis, which means that it belongs to a species all of its own and so is unique. The purpose of civil contempt is not only to enforce court orders, but also to maintain public confidence in the judicial system “since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity”.

Criminal contempt

This involves conduct that interferes with or obstructs justice delivery. Examples of criminal contempt include threatening, or insulting a Judge or Magistrate, a witness and disobeying a subpoena to produce evidence. With criminal contempt, the act constituting the contemptuous conduct has been completed and the contempt cannot be "purged”. The punishment is imposed to vindicate the authority of the court.

The differences between civil and criminal contempt are significant procedurally but, because the same conduct may be punished by either fine, imprisonment or both, the difference between them sometimes blurred. As Lord Scarman has pointed out, the distinction between the two may have less relevance today, but it still useful for classification purposes. He espouses as follows:

“The distinction between ‘civil’ and ‘criminal’ contempt is no longer of much importance, but it does draw attention to the difference between on the one hand contempt’s such as ‘scandalizing the court’, physically interfering with the course of justice, or publishing matters likely to prejudice a fair trial, and on those other contempt’s which arise from non-compliance with an order made, or undertaking required in legal proceedings”

The above notwithstanding, recent authorities by the Supreme Court have established clear difference between the two kinds of contempt. Criminal contempt is punitive, and it is designed to punish an attempt to prevent the course of justice. A civil contempt, on the other hand, is remedial and coercive, intended to achieve compliance with a court order for the benefit of the complainant. It is used to vindicate the` court's authority by punishing improper conduct. This was emphasized in the case of Elikplim Agbemava v. Attorney-General; Alfred Tuah-Yeboah v. Attorney General; and Nana Asante Bediatuo v. Attorney General where His Lordship Benin, JSC highlighted this proposition poignantly as follows:

“In summary, the punishment for civil contempt is remedial in favor of a complainant, in vindication of private rights. On the other hand, the punishment for criminal contempt is punitive, and in the interest of the public in the protection of the authority and dignity of the court. Consequently, for contempt of court to come within the provisions of article 72, it must be criminal contempt for which a person has been convicted by a court of competent jurisdiction … Thus, under our laws, a charge of criminal contempt of court may lie by virtue of articles 126 (2) and 19 (12) of the Constitution or under Section 224 of Act 29. Whereas the Court can initiate contempt proceedings suo motu under Article 126(2) of the Constitution, the Attorney-General or somebody else at his direction may do so under Section 224 of Act 29”.

FORMS OF CONTEMPT

Research conducted by the “Jang Group and Geo Television Network” shows that in every country, there are two categories of contempt: being rude or disrespectful to legal authorities in the courtroom, or wilfully failing to obey a court order.

There are two forms of contempt, namely, contempt in facie curiae: and contempt ex facie curiae. Contempt in facie curiae is committed inside the court during Court proceedings. It may also be committed in the presence of the Judge.

Contempt ex facie curiae: This contempt is been committed outside the court. In the Republic v. Liberty Press Ltd & 28 Others and Republic v. Kwabena Mensa-Bonsu & 2 Others both cases are classical examples of ex facie curiae. In Republic v Mensa Bonsu; Ex parte Attorney-General, a newspaper columnist, an editor and the printer/publisher were prosecuted for publishing a letter accusing a judge of making wrong attributions and changing the orders that had earlier been dictated in open court. The majority of the Supreme Court ruled that “imputation of lack of impartiality by the judge and statements describing him as a liar and one guilty of criminal behavior amounted to scurrilous abuse imputing improper motive... It was therefore contempt of the Supreme Court when scurrilous abuse was directed even at one member."

In that case, as Martin Amidu stressed; prosecution was initiated and conducted by the Attorney General in the High Court and the Supreme Court respectively, and gave the accused persons the right to a fair trial.

CONDUCT OF CONTEMPT PROCEEDINGS IN GHANAIAN COURTS

Oder 50 of High Court Civil Procedure Rule (CI 47) rule one (1) subsection (1), (2) stipulates that: “(1) The power of the Court to punish for contempt of court may be exercised by an order of committal. (2) Committal proceedings shall be commenced by an application to the Court.”

The Ghanaian Courts have always upheld to the “audi alteram partem rule. This rule of natural justice literally means “listen to the other side.” This is emphasised in the case of Republic v. High Court Accra, Ex parte Millicom Gh. Ltd. & Ors. In this case, the Court held that “proceedings in an application for contempt could not commence until the court has satisfied itself that the respondent to the application had been personally so served.”

It is worthy to also note that, in Ghana, only the Superior Courts have the power to punish for contempt of court (Article 126(2) of the Constitution). The Superior Courts can, suo motu, commence contempt proceedings. This position was affirmed in the recent case of Republic v High Court (Land Division), Accra; Ex – Parte Kennedy Ohene Agyapong (Susan Bandoh as Interested party) (unreported) where the learned Supreme Court, Kulendi, JSC stated in paragraph 12 that;

“It must however be noted that the Superior Courts when dealing with summons for contempt suo motu pursuant to article 126 of the Constitution, have a wider latitude and cannot be held to the terms of a subordinate statute such as the Criminal and Other Offences Procedure Act, 1960 (Act 30)”.

In proving contempt against a contemnor, the prosecution must prove the same standard as in all criminal offences as hinted in the case of Elikplim Agbemava v. Attorney-General; and Alfred Tuah-Yeboah v. Attorney General; Nana Asante Bediatuo v. Attorney General, supra, per Benin, JSC "Besides all that has been said, the standard of proof required in a charge of scandalizing the court, scurrilous publication about a judge and all matters that bring the administration of justice into public ridicule and hatred or interfere with the administration of justice is proof beyond a reasonable doubt, the same standard as in all criminal offences".

Contempt of court has been quasi-criminal aside proving beyond a reasonable doubt, the applicant must first make out a prima facie case before the court could consider the defences put upon by the respondents. This was settled in the case of In Re Effiduase Stool Affairs (No. 2); Republic v. Numapau, President of the National House of Chiefs; Ex-Parte Ameyaw II (No.2). Any applicant in the civil matter who want to establish beyond reasonable doubt the offence of contempt against the respondent or the contemnor must establish the following essential elements stated in the case of Republic v. Sito I Ex-parte Fordjour. They 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; and

(iii) It must be shown that he failed to comply with the terms of the judgment or order and that the disobedience is wilful.

In some circumstances, contempt proceedings may be both criminal and civil in nature. For example, a Judge or Magistrate might wish to punish a litigant for past disobedience of a court order while also coercing adherence to that order in the future. If a contempt proceeding is criminal in any part, that feature controls and the accused must be afforded all procedural rights applicable to criminal contempt proceedings. Criminal Contempt is initiated mostly by the Attorney General, so cannot be waived whilst Civil Contempt is initiated by the affected individual, so can be waived.

THE RATIONALE BEHIND CONTEMPT OF COURT

The rationale for contempt proceedings is the need to vindicate the dignity of the court as an institution, and thereby protect it from disparagement and ensure due administration of justice. It is not to bolster the power, dignity and ego of the judges as an individual. Once a competent court of law issues an order, it is expected to exude obedience, and default of that attract the offense of contempt to the contemnor; except and only if the orders have been set aside. In Republic v Mensa-Bonsu and Others (supra), the need to preserve the sanctity and integrity of the courts and its judges was eruditely postulated as follows:

"Article 127(2) of the Constitution 1992 guaranteed the independence of the judiciary. The high premium placed on the integrity, dignity and independence of the judiciary under the Constitution underscored the importance of the judiciary in society. The judiciary was an indispensable institution in any democratic society for the administration of justice. It was therefore of the utmost importance that the sanctity and integrity of the courts and its judges were preserved to enable them to perform their judicial functions peacefully and without interference from any quarter, hence the power to commit for contempt”.

In order for our judiciary not to lose its highest established integrity as a result of flagrant disregard of its orders and judgments especially from other arms of government. For there to be a smooth running of government under a democratic dispensation, there must be respect for the judiciary as an institution with full legal garment from the constitution and other legislative enactments made pursuant thereof.

“The sacred role of the judiciary cannot be sacrificed on the altar of ridicule, scorn, opprobrium or impudence of any individual to the disadvantage of society at large”.

CONCLUSION

Judges and Courts are open to criticism as thought by Lord Atkin in the case of Ambard v. Attorney-General of Trinidad and Tobago. The revered Jurist “Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”. If reasonable argument or objection is offered against any judicial act as contrary to law or the public good, no court could or would treat that as a contempt of court. In everything there are exception, if litigants or the citizens misuse their freedom to disrespect for the judge or judges hearing the case, disruption of the proceedings through poor and uncalled for behavior and publication or airing of certain material or even non-disclosure of material which may jeopardize a fair trial, then the dignity of the Court must be upheld as Lord Denning confidently stated in Regina vs Police Commissioner Case of 1968:

“Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”

He further said “All that we ask is that those who criticize us should remember that from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication.”

REFERENCES

Dennis, 2019: Law Supreme Court Legal Nuggets.

Fred Obikyere: Legal Resources Book (pages 357-360).

Justice S.A. Brobbey: Enforcement of Judgments and Orders

Benjamin T. Antiedu, 2019: Reading the Law

Emmanuel Kwabena Quansah, 2011: The Ghana Legal System.

Sabir Shah, August 12, 2017: How the World Views Contempt of Court Law

Kingsley Chukwudi Igbokwe: Knitting Contempt of Law to the Administration of Justice in Nigeria: no Longer at ease

Muhammad Syahmi Mohd Karim: The Contempt Power: A Sword or a Shield? – A study of the Law and Practice.

AUTHOR: ANTHONY GOODNUFF APPIAH LARBI*

*The Writer is a Law (LLB) Student, Legal Researcher and Youth Activist. At press time, he has been awarded the Student Author/writer of the year 2020 under the auspices of National Students’ Award. The author can be reached via Email: [email protected] or Tel: 0549657873 / 0591040426