Injunctions: Avoiding contempt of court | The Law with Samson Lardy Anyenini (24-9-23)
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NewsTranscript
00:00 Hello, good afternoon and welcome to The Law. This is your legal light, it is your health
00:05 law. I'm Samson Ladia Yenedi. It's been a couple of weeks of talk about injunction and
00:12 contempt. What are they? We'll be right back, right here on Your Legal Clinic, breaking
00:20 it down and giving you platinum education.
00:24 Welcome back. This is The Law. It's your legal light, it's your health law. I'm Samson
00:35 Ladia Yenedi and joining me this afternoon for this education on injunctions, avoiding
00:41 contempt of court, Bobby Banson is a law lecturer and author of legal texts. Also, Albert Genfi,
00:49 he's also a law lecturer and author of legal texts. He's based in Kumasi, whilst Bobby is
00:56 right here in Accra. Good afternoon, gentlemen, and thanks for making time to join us on The
01:01 Law. Good afternoon, Samson, and thanks for having us. Before we get serious, let me say
01:10 something that just crossed my mind. I've known you for more than 20 years, maybe? No,
01:17 not 20. Yeah, yeah. You've always been the same, except the little grey hair that I've
01:25 got. All right. Okay. Grey is supposed to be a blessing, so I tap into the blessing.
01:32 Albert, always good to have you. Our audiences are excited about the way you're able to break
01:37 down the difficult legal things so simply, effortlessly. Albert? Good afternoon, Samson,
01:45 and good afternoon to you, too, anyway. Thank you for having me, too. It's good to meet
01:51 my senior, Bobby Banson. I'm glad to be here today. Okay. So, Bobby Banson and I sat in
02:00 class once, and then we jumped and we moved from one place to the next. Okay, so let's
02:06 begin. So, Bobby, and for the purposes of this afternoon, I've had to go back, pick
02:14 your book, read again, read my rules, and look at some of the authorities that some
02:19 people say that bring a certain two views on whether, if an injunction is pending, it
02:27 should operate as, you know, sort of a stay on the one who is being injuncted or so on
02:34 and so forth. But let's begin. When we say injunction in the court process, what does
02:44 it mean? Well, an injunction is a normal English word to injunct somebody, to restrain the
02:54 person. In the context of court or legal proceeding, it may have two meanings. It's not only an
03:04 injunction is a term that is used in the court process, not only to restrain somebody, but
03:10 sometimes an injunction, so an injunction could be prohibitive or mandatory in the sense
03:16 that you are asking somebody to do something, or it could be used that do not do something.
03:21 So it may have two sides of the sword. It could direct an act to be done, or it could
03:28 restrain an act from being done. So it could have those two balances. Now, the procedure
03:34 or the process, an injunction could be applied for in the course of a claim or a relief.
03:43 So after, for example, you have issued a writ of summons, which is the most popular means
03:47 of commencing action people know, you can decide to apply for an injunction to restrain
03:54 the other party from doing something or to direct the other party to do something pending
04:01 the final determination of your substantive claim. So in that sense, lawyers would say
04:06 that that injunction is interlocutory in the sense that you have filed it pending the final
04:13 determination of the claim. So the outcome of that injunction process is not prejudicial
04:20 or should not be prejudicial to your substantive claim. So for instance, I'm litigating with
04:26 Samson over a parcel of land in Dansoman. I have sued Samson for the court to declare
04:32 that I am the owner of the land. Then when I have traveled to Kumasi, I am told that
04:38 Samson has sent workers there. He has started developing the land. Then I have a right by
04:44 law to apply to the court for the court to restrain Samson from developing the land pending
04:51 the court determining who is the actual owner of the land. So the outcome of that application
04:58 injunction, the court must not determine who is the owner of the land. He is only looking
05:05 at the facts and the prima facie evidence that is before the court to determine whether
05:11 or not on the face of it, there is a need to restrain the parties pending the final
05:18 determination. To hold the scales in balance, correct? In balance, yes. Right. Injunction
05:24 could also be claimed as a substantive relief. And so a party may go to court asking for
05:31 injunction permanently. And that could be by a writ or an originating motion on notice.
05:38 So that the person's main aim for going to court is for the court to restrain somebody
05:46 from doing something in perpetuity. So, Abed, from what Bobby's explanation, does it mean
05:56 that I must have been in the court already before I can ask a court to give me an injunction?
06:06 As in the temporary one or the permanent one? All right. So like Sinha said, in the past,
06:16 injunctions could only be applied for when there's a substantive action pending. So there
06:22 must be a case in court. Then you apply for an injunction as a permanent relief, which
06:28 in law we refer to as perpetual injunction, or you apply for an injunction.
06:38 Not a good start. Albert's Zoom has always been very reliable. You don't know about today.
06:44 So Bobby, let's try and explain and give the education on that again. That you were saying
06:53 either you have a writ or an originating process in court, either you have a petition in the court,
06:59 or you have something pending before the law allows you to ask for the temporary one,
07:08 the one you call the interlocutory injunction, right? Okay, Albert is back. Albert, let's continue.
07:19 Hello, Albert. Okay, Albert's line just froze again. So yes, Bobby.
07:29 The position of the law has been that a court cannot grant an application for injunction,
07:39 no, rather, yeah, a court cannot grant an application for injunction unless there's a
07:45 substantive originating processes before the court. And so you cannot merely file an application
07:52 for interlocutory injunction if you do not have a writ, or you do not have a petition,
07:58 or you do not have an originating process. So that the example you gave, the example you gave
08:04 about a land litigation with me, which will never happen, because I'll simply give up. I'll just say
08:13 my friend, just keep it. I know you say the same. In the case we had, I gave up. All right. So,
08:20 if there is a litigation, like you're saying that, first of all, I must have a suit,
08:27 and I'm using suit for the understanding of our audience. I must have a suit in the court,
08:35 before I can now come to the court and ask by an application that I want an interlocutory
08:42 injunction to stop this person from doing this until the case itself has been heard, right?
08:47 Yes. So you must have a substantive originating motion, sorry, originating processes file,
08:55 like you said, a suit. So if you do not have a substantive suit before the court,
09:01 you cannot merely apply for an interlocutory injunction. Indeed, there is a case where
09:08 there was a rate, but the only relief that was endorsed on the rate was an order for an
09:16 interlocutory injunction. That was a rate, but the only relief endorsed on it was an order for an
09:24 interlocutory injunction. The Supreme Court held that it is not a substantive relief, and so that
09:31 rate was struck out for disclosing no cause of action. And so they have made it quite very clear
09:37 that in the absence of a substantive originating processes before the court,
09:42 a party cannot merely seek to invoke the interlocutory jurisdiction of the court.
09:47 Great. Thank you very much. So the injunctions, as you say, what is the purpose of an injunction?
09:56 Very well, again, back to our land litigation scenario, where we know, we all know how long
10:05 sometimes it takes for cases to be completed in the court. In our current dispensation,
10:10 average is between 12 to 18 months, average, or 18 to 24 months. Now, if I have filed the rate
10:20 against you, asking for a declaration that I'm the owner of the land, and you are on the land
10:26 developing it, if I wait for the 24 months for the court to finally determine that I am the owner of
10:34 the land, you would have built the-- you would have developed the land. And so whatever judgment
10:40 I would have obtained may not be as fruitful as I have hoped for. So in such circumstances,
10:47 or in such circumstances, I can apply to the court for the courts, like to borrow your thing,
10:52 to hold the scale of justice, hold the balance, pending the final determination of the matter,
10:59 so that nobody would take a step that will render the final judgment moot or obtuse. And so,
11:06 for example, if it is a Marivia injunction, which is one form of injunction, where there is litigation
11:13 or prospective litigation over, let's say, a company's assets, and one shareholder intends
11:20 to take all of the assets outside the jurisdiction, and there is a suit, a shareholder or a party can
11:27 bring an application for an order to restrain the other person from taking all the assets outside
11:33 the jurisdiction, pending the final determination of the matter, which could be 24 months or 36
11:39 months, depending on how expeditious it turns out. So the court always looks at, one, is there a
11:46 prima facie legal or equitable interest? That is, on the face of the documents that are before me,
11:54 has Samson demonstrated that he has some level of interest to be protected? Has Bobby demonstrated
12:02 that he has a level of interest to be protected? This is so, so that people do not bring frivolous
12:08 claims just for the sake of it. So that if I see you developing your land, because I have,
12:15 you are knowing it because we belong to different political parties, and I've seen that you are
12:20 prospering, and then you are developing the land, then I file a suit and bring an application for
12:26 injunction. When I do not have any interest at all, no matter how minute it is to be protected.
12:33 So if the person bringing that application for injunction does not demonstrate any interest at
12:39 all, at all, the courts will dismiss the application. If you have demonstrated, yes, yes.
12:46 I know you were going to go to maybe about two more, you know, basis for which a court will
12:53 decide on the question of whether one person deserves an injunction or does not deserve.
12:59 Now I understand Albert is back with that. Hello, Albert.
13:02 Yes, Samson, sorry, sorry for that. Great, great. So now Albert, we are at a time when we are
13:10 talking about why a court will grant an injunction. All right, so a court will grant an injunction,
13:22 we say no to preserve the status quo before litigation. That's interlocutory injunction.
13:28 Yes, so I filed a case against Bobby, and like you rightly explained, we are litigating over
13:37 a parcel of land. That nobody is supposed to do anything that would change the circumstances of
13:44 the land or the action expended. Or you have sued me, or you have sued me for defaming you,
13:52 and you are asking the court to stop me from continuing to make publications
13:59 that defame you until the main case has been determined. So the scales are held even. Okay.
14:06 Exactly. So that you don't do anything that would prejudice the hearing of the matter.
14:13 So that even if I win, I will have to now go through certain hardship to get what I want
14:19 from the court. So in the defamation case that you mentioned, you are defaming me,
14:23 I'm taking you to court for the court to restrain you from defaming me. Then if you continue to
14:28 defame me, even though I could win the original suit against you, but by that time my image would
14:32 have been destroyed. So the court restrains you so that at least we could have an even playing
14:37 field for the matter to be determined. So Bobby began by saying the first thing the court will
14:49 consider is whether the one who is asking for the injunction, that is the interlocutory injunction,
14:55 whether they have a legal right, so to speak, or is it equitable rights? What does that mean?
15:04 How is that manifested? How can I explain that to someone on the street? When it's a land issue?
15:10 If you talk about legal rights in land, you are going for an injunction to prevent somebody
15:19 from developing that land until the case is determined. Like Bobby really stated,
15:24 at that instance, the court is not yet to determine who owns the land. But before the
15:30 court will restrain the other party from developing the land, which will come with some sort of
15:35 hardship to the person because he has to hold on to the land, he would not have to use his
15:40 building materials, the libraries that he would have paid would not be able to work on the land,
15:45 the court wants you to show something on paper, show something to the court, at least for now,
15:50 so that the court will be convinced that you have a chance of success in court. Not that you would
15:55 win at all costs, but at least something to show that you have a potential of winning the suit.
16:02 That is what is referred to as the interest in land. That interest could be legal or it could be
16:09 equitable. So in the sense that legal means that on paper, you are the owner of the land. So I have
16:15 paperwork to show that I am the owner of the land. Either I have an indenture, I have an
16:21 allocation, I have a land title certificate, something to show on paper that I have a chance
16:29 of success in court. Then equitable interest means that I do not have anything on paper,
16:36 but I could lead evidence which will show that I have some beneficial ownership to this land.
16:42 So maybe I am a beneficiary of a will. My father willed the property to me,
16:46 but vested in assent has not yet been made. Maybe I obtained the property because of a
16:54 customary gift which was made to me. Maybe both of us are owners of the land. I gave him the money
16:59 to buy the property. His name is on the paper as a legal owner, but I am the person who gave him
17:05 the money. So I also have equitable interest in it. So you are supposed to show something
17:09 to the satisfaction of the court for the court to see that at least this person has shown us
17:15 something that he has a chance of success in court. So let's give him the opportunity so all parties
17:20 are restrained so that the court would take his time to now go into it as to whether your claim
17:25 is sufficient to grant a declaration of title in your favor. So show something to the court
17:30 for the court to know. That's what it means. Gentlemen, thank you so very much. You're still
17:34 here on the law. This is your legal light. It is your help law. And Bobby Banson and Albert Jemphie,
17:41 both lawyers and teachers of the law and who have also written books about the law, are helping us
17:48 educate on what injunctions are, what they are not, how you may get it or may not get it. And
17:57 we have just dealt with one ground or a reason the court will look for from you to be able to
18:05 consider that you deserve an injunction. That is what we call the interlocutory injunction as
18:11 explained by Bobby, which is that it is giving so that both parties don't do anything that will
18:22 affect the interests of another. So they are at equal status before the case is determined to
18:31 determine who is a winner, who is a loser. Right now, so let's continue Bobby. You are going to
18:38 the next ground or reason for which a court will consider before giving somebody an injunction of
18:47 that nature. You have established that you have an interest. That is not enough. The court must
18:59 look at it and confirm whether or not one, the balance of convenience is in your favor.
19:06 What is that? Yes, so this balance of convenience term as the court use it,
19:13 I believe it, I'll best explain it in the context of whether or not if the injunction is not granted,
19:21 if the injunction is not granted and the other side goes ahead to do what you are restraining
19:29 or you are seeking a restraining order, one, you would have any other remedy.
19:35 Two, whether you can be compensated for in damages. So these two components best explain
19:43 the balance of convenience terms that the lawyers or the judges mostly use. So one,
19:49 I have established that I have a legal right. Two, if the court is convinced that I have a legal
19:55 right, the court must ask itself the question, if it doesn't grant the injunction, is there any
19:59 other remedy? Or if the damage, will I be compensated in, when I say damage money three
20:05 times? So for example, in a land litigation, if the court sees that I have some documents to show
20:12 that I have an interest in the land and the court does not restrain me and Samson goes ahead to
20:19 develop the land, at the end of the day, if I win the case, will the development by Samson,
20:27 what will it do for me? If I win the case, I will then be saddled with a building that I'm
20:34 not interested in. Maybe I wanted to develop it into a residential facility. Samson wants to
20:40 develop it into multimedia studio annex. So if the court and multimedia studio annex has got nothing
20:47 to do with a residential facility. So if the court does not grant my application for injunction,
20:54 after I have demonstrated that I have a legal right that must be protected, and Samson proceeds
21:00 to develop the land in a manner which is at variance with my original intention for acquiring
21:06 the land, I will then be saddled with either breaking down the structure that Samson has built
21:14 at a different cost. And the court will consider all of those. But if in a situation that is
21:22 different, the court feels that there are other remedies available to you, and that's whatever
21:29 damage would have occasion as a result of the refusal to grant the application can be compensated
21:36 in by cost, the court may refuse the application. Let me give you a scenario in that instance, we
21:43 have a lot of situations in our country where traders import items. Let's say, I don't want to
21:56 breach anybody's intellectual property, right? But okay, let's just say that I want to use a
22:04 cited case. I think it was in Baba Jamaa. There was a gentleman, Abu Ramadan.
22:11 Abu Ramadan went to court and sought an injunction. Was it against the electoral commission
22:17 or so, one of his cases? Because the court had given an order, and then the electoral commission
22:24 had flouted it. So he went to court for an injunction. And I think it was Justice Dakinba,
22:30 who said that if the intention is granted, it will result in a melting down, he used the word like
22:37 that in his judgments of our electoral system. And so they will decide to look at the greater good,
22:44 and then allow the EC to proceed with what they were thinking to do. And then if at the end of
22:51 the day, Abu Ramadan is able to establish in his writ before the Supreme Court, that what the
22:58 electoral commission actually is doing contradicts the constitution and their law, then they will
23:03 make sub sequential or consequential orders. So that must be the case in which in the end,
23:11 they sought to remove the NHIS card as an identifier for registration. And therefore,
23:21 an order was made to the electoral commission to remove all those who had registered with that kind
23:27 of identification. So in that instance, even though Abu Ramadan's case was prima facie,
23:34 that was a good case, the court looked at the balance of convenience. Okay, if we granted,
23:40 would there be, can it be remedied at the end or there will not be any remedy? Would damages
23:46 be enough? Maybe you should look at it, you should look at it also from the example you gave about a
23:53 shareholder and a company matter. Yes, if you have such an instance, where I, for example,
24:03 a company has a managing director, a shareholder goes to court for an order that the managing
24:10 director was wrongly appointed. And so the managing director should not act, brings an
24:17 application for injunction, restraining the managing director from acting until the final
24:22 determination of the case. Even though the shareholder may have a prima facie right,
24:26 the court will ask itself, if I restrain the managing director from acting now,
24:31 it means that the court, the company will not have a managing director. And the court cannot
24:38 appoint managing directors for companies. And whatever remedy that that shareholder may be
24:44 seeking from the courts can be ordered at the end of the trial. So the court to look at the
24:50 greater good of the company running down or maintaining the status quo by keeping the
24:56 managing director until the final determination of this matter. And this, if we just end on this
25:02 point, and this balance of convenience analysis, it's because an injunction is an equitable relief.
25:10 And so it gives a lot of discretion to the judge to look at the overall interest of all the parties
25:19 involved equitably, not strictly by law, like other processes. So that the balance of convenience
25:27 analysis is founded on the equitable jurisdiction of the court in granting or refusing an application
25:33 for injunction. Right. Let me bring Albert back on and see what Albert has to say about this
25:40 additionally, and then speak about the final point, which a court will consider to give
25:48 an injunction that is the interlocutory one, the temporary one, the one that makes sure that all of
25:53 you are on equal, you know, level playing field before the case itself, or the suit itself is
26:00 determined at the end. Do I have Albert? Unfortunately, Albert will have to retweak
26:09 his Zoom because I understand that it's it's frozen. Just when I was going to Albert again.
26:17 Okay, thank you. Albert, I understand you're back. So my question to you is, if you have anything to
26:23 add to what Bobby has said about the second ground, and then also lead us to the final ground of what
26:31 the court will consider to grant or not grant an interlocutory injunction. Okay, we'll try and get
26:49 Albert to rectify his line and then we get back to him. So like Bobby has been talking about, the
26:57 second one is whether, you know, there is the balance, the court will consider the balance of
27:04 convenience, who is going to be more inconvenienced. And if somebody is going to be inconvenienced,
27:11 will they, can they be compensated in the end? If you are allowed to go on, and you are not stopped
27:20 in the end, can they be compensated? That's what he was talking about. So let's have your final,
27:26 you know, comments around granting of injunction and then I'll ask you the next question.
27:33 So if the person making the application is able to demonstrate to this court that he has met all
27:43 these criteria, then the court may grant the injunction. And interestingly, the rules provide
27:50 that if the court grants an application for injunction, the person at whose instance the
27:57 application is granted must provide an undertaking. So if you file an application for injunction,
28:05 and it is granted by the courts, then you must sign an undertaking. That is if the other side
28:12 opposed it, you must sign an undertaking telling the court that in the event that you lose the
28:20 case, the substantive case, all the damages or all the loss that may have occasion the other side
28:27 because the injunction was granted, you are ready to pay. And so I think there's a famous estate,
28:34 because some parts of the case are still in court, a famous estate on the Temamoto way,
28:40 where recently there's been a lot of hula baloo that case dragged on for almost 20 years,
28:45 a very famous estate. And then an injunction was granted. And the person at his instance,
28:52 the injunction was granted, lost the case at the end. And now they are calculating the damages that
28:58 the person must pay a very famous estate. Right. And, and, and, and we also note that sometimes
29:06 when the court is going to give you it will ask you to undertake given undertaking.
29:10 Yes, that's what I just said.
29:12 Right. That in the end, right. Okay, thank you. I guess I just added that.
29:17 Thank you. Thank you very much. Albert is back. So Albert, we're talking about interlocutory.
29:23 And I wanted to bring you on on what people have also become familiar with, which is interim.
29:30 What's the difference? We mentioned interlocutory, we mentioned the one that is, if you like,
29:36 perpetual, or we call it permanent, perpetual. But there is one that appears to come before all of
29:43 these. Interim, which one is that? Interim injunction has some familiarities with interlocutory
29:53 with that both of them are granted during the pendency of reaction. The difference is that for
29:59 the interim injunction, like the name suggests, the court grants it in the interim. So if you
30:05 found a case, and for some reason, you are not even finding the person to serve, or even if you
30:11 serve the main rate of sermons, but you want to serve the application for injunction, you are not
30:17 finding the person, and you think that trying to look for the person or going by other means is
30:22 likely to delay, or because the person is invading service, it will delay your service of the main
30:28 application for injunction for the interlocutory injunction on him. Then what you do is that you
30:33 go to the court, what we lawyers call ex parte. You go to the court and this time you narrate your
30:40 situation to the judge, tell the court the situation on the ground, and if the court is satisfied
30:46 that there is a matter of urgency, and that something has to be done immediately now,
30:51 the court can grant you interim injunction. When the court grants the interim injunction,
30:56 it is for a period of 10 days. Its validity is for 10 days. So that you can now have the injunction
31:03 to serve the person while you prepare to look for him to serve him with a motion for interlocutory
31:09 injunction. So it is a one-sided affair. The court grants it because it is urgent that that
31:16 injunction be granted. Maybe perishable goods are involved. Exactly. Or an example is someone
31:23 is planning to demolish your property, and you need to file a case for interlocutory injunction.
31:30 The person behind the demolition, you cannot find him. You can go for interim injunction so that you
31:35 can serve those who are to demolish the property for them to stop for 10 days while you look for
31:39 them. And like example you gave where perishable goods are involved, you cannot go through all
31:43 that process of serving for the president to respond and all that. The court can also grant
31:48 interim injunction to restrain the situation for now. Except that that will last for only 10 days.
31:53 A period of 10 days. So after 10 days, if you don't repeat it on notice, in other words,
31:58 serve the other party for him to be heard on it, then that injunction would last and it would be
32:03 deemed that there is no injunction pending before the court. So technically what the lawyers do is
32:07 by the ninth day or the tenth day, then you go and file it on notice, correct? Yes, but for me what
32:14 I do is that when I'm going to serve the order for interim injunction, I also serve together with the
32:19 motion for interlocutory injunction. If I can find him to serve the interim injunction, then
32:24 he should be able to find him to serve the interlocutory injunction. I do it side by side,
32:28 but some would also wait to the ninth day, then they would put it on notice.
32:32 All right, thank you very much. If you are still here, this is the law, it's your legal light,
32:37 it's your help law, and we have two lawyers helping us to understand the questions of injunctions. We
32:45 are graduating to the questions of contempt, Bobby Banson and Albert Genfe. So let's come to
32:55 the elephant in the room now. We know that the perpetual injunction, you have already explained
33:03 that, that one is given at the end of the case and you are stopped in perpetuity from doing something,
33:11 correct? Yes, it's an order that is rendered in rem against the whole world, directed through the
33:21 person who lost the matter, that forever you are not allowed to go onto Samson's land,
33:26 you are restrained forever. You and every person who claims to you, your children, your children's
33:33 children, your agent, do not go near Samson's land. Right, and when I use the defamation matter,
33:39 it will also mean that you would have been injuncted me perpetually from commenting on the
33:44 matter that you took to court against me, correct? Yes, in a manner that would then be prejudicial
33:53 to the matter. Right, now we are giving this education on the back of certain developments
34:01 and pronouncements by lawyers. Then you hear some lawyers say, once you file the application for
34:12 interlocutory injunction and you serve a copy on the party who is supposed to be served,
34:19 and they become aware that you have gone to court and you are seeking to stop them from doing
34:27 something, then you are stopped from doing that thing until the application has been determined.
34:35 And others say, no, no, no, no, you are not stopped until the matter has been determined
34:42 and the court gives an order. You are not stopped. You can do as you please. The application is not
34:50 an order of the court, so there is no injunction, so to speak. Let me begin on this point with
34:58 Albert. What do you say? Alright, I think this is a wrong legal statement in my view,
35:07 and that does not reflect the situation of the law. Something permits me to quote certain cases,
35:15 and I'm doing this because this argument that we just heard has been shared by a lot of legal
35:21 practitioners on various platforms. In the case of the Republic versus Professor Ni Osunate,
35:27 ex-party, Itawaka and Tessitikadze, the court had this to say, "Any act of conduct that tends to
35:38 interfere with the administration of justice may constitute contempt of court. Once an application
35:43 is pending, parties are made aware of the pendency of the failed application. Any conduct on the part
35:51 of the respondent that is likely to prejudice a fair hearing of the application is tantamount
35:57 to contempt of court." In the case of the Republic versus Bank of Ghana and others, ex-party Duval,
36:05 the Supreme Court said that when the court is fielded with jurisdiction to hear a matter,
36:10 nothing should be done to exert the judicial power that has been vested in the court by the
36:15 Constitution of Ghana. In effect, the state of affairs before the court was fielded with a matter
36:20 must be preserved until the court delivers its judgment. This is so, whether or not the court
36:26 has granted an order to preserve the status quo or not. A party to the proceedings will be in
36:32 contempt if she engages in an act subsequent to the filing of the case which would have the effect
36:38 of interfering with the fairness of the case or undermine the administration of justice. The
36:44 conduct must be one which has the effect of prejudging or prejudging the case even before
36:49 a judgment is given. Last one, in re-affidavit to Lafayette, number two, Republic versus Numapal,
36:57 ex-party Ameya, the Supreme Court said, "Any act of conduct that tends to bring the authority and
37:04 administration of the law into disrespect or disregard or to interfere with or prejudge
37:09 parties, litigants or their witnesses in respect of the proceedings constitutes contempt. So any
37:16 act or conduct that tends to interfere with the administration of justice may constitute contempt
37:22 of court." So what it means is that when a proceeding is pending in court, when an application
37:28 is pending in court, and a party is made aware, that is the language the Supreme Court uses,
37:35 party is made aware of that particular process pending before the court, that party who is aware
37:43 is not supposed to do anything that would prejudice or interfere with the administration
37:51 of justice. The law does not even require that you should be served with an application for injunction
37:58 before you stop what you're doing. The law says that so far as you are aware that an application
38:04 for injunction is pending in court, you cannot do any act that would interfere with that application
38:11 that is to be heard. Let me give an example. So somebody is dead, there's an application for
38:16 injunction filed to prevent the dead body from being buried. Just an example given. Now when
38:22 the application is served on you, you cannot bury the person claiming that there is no order of
38:28 injunction because when the person is buried, then there's no purpose for the court to hear the matter.
38:33 That amounts to interference with the administration of justice. Now most people think that the
38:41 service of the application is not an order, but the effect of the service of the application is
38:46 the order because the surest way to prove to the court which burden is on the applicants for content
38:52 to prove to the court that the party is aware is to prove that he has been served. So try to
38:58 be careful, you don't even need to be served to stop. But if I want to be sure that you'll be
39:03 found in contempt of court, then I'll be proving that you are aware, I show evidence that you have
39:07 been served. So for instance, if you are a party to a case, you go for a radio interview, the interviewer
39:15 asks you, are you aware that this particular application for injunction has been filed in court
39:21 and your argument is that oh I'm aware but I have not been served, that argument, that evidence can
39:26 be used against you and it can even be found in contempt of court, although you have not even been
39:30 served. But once you are served and you disregard that act, it is not a disobedience of the court
39:36 order, but an interference with administration of justice and that reminds you amongst the contempt of court.
39:43 Thank you very much. Bobby, what do you say? I agree wholly with the argument that once you are
39:54 served with an application for injunction restraining you from undertaking an act, then you
40:03 would have to hold on onto that application for injunction is heard. The reason is that
40:09 per article 1 to 5 of the 1992 constitution, judicial power is vested solely in the judiciary
40:17 and so if there are disputes between parties, it is only the judiciary that can determine it.
40:23 So if I serve you something with an application to restrain you from developing the land and then
40:30 you say that well it is an application that I have served on you, asking the court for the court to
40:37 restrain you and as long as the court has not made that order, you will proceed with the development.
40:42 What it means is that you are arrogating onto yourself that authority to decide and take it
40:49 away from the bowels of the court and because the courts are there by our own social contracts, as
40:57 we would call it, decided to establish the judiciary and vest that authority in them. If you do anything
41:05 that will erode public confidence in the judiciary in the sense that if I file a process and I serve
41:12 on you, you have no respect to the authority of the judiciary and so you go ahead and do as you
41:19 deem fit, then you are undermining the authority of the judiciary, the dignity of the judiciary
41:26 and then you are arrogating onto yourself that power. So that for me is the reasoning behind
41:33 those ratios in the cases that my colleagues cited. But where I have a challenge, where I have a
41:40 challenge is the use of the word and I've seen it in some cases from the 1960s till now, is the use
41:48 of the word when the party becomes aware. Now if you read all and I've taken my time to read all
41:56 those cases where those words were used, they become aware there was some form of service
42:04 on those persons or they are authorized agents and because you see contempt is quasi-criminal
42:12 and so before you were able to get a conviction for contempt against somebody in such an instance
42:21 where you filed an application for injunction and you said the person was aware and yet the person
42:27 proceeded, you must prove beyond reasonable doubt that indeed the person was aware. So if something
42:35 you call me and they say oh Bobby I have heard that Albert has filed an application for injunction
42:45 against you, are you aware? Then I say oh yes I'm aware but I have not been served. Now truly I am
42:52 not served with the process. Maybe Albert was asking for an order restraining me, this is a
42:59 loose example but let me put it like that, restraining me from selling my car to you
43:04 Samson. So you Samson you call me and say ah Bobby I'm told that Albert has filed an application for
43:11 injunction, are you aware? I say I'm not aware and I proceed to sell the car to you. Now Albert
43:17 files an application for contempt or committal for contempt even though I was not served and
43:23 say that I told Samson I was aware. Now my fear with this approach in the absence of
43:32 proper legal service is that in our day of social media and technology, what I see on social media
43:42 if I say I'm aware may not be what was actually filed or not all the pages were filed.
43:52 Perhaps I may, perhaps Albert may have filed an application for injunction asking for certain
44:01 reliefs but it is loosely referred to as an application for injunction but the specific
44:09 reliefs that are endorsed on the motion paper are unknown to me. Right. And if we, the argument that
44:18 we would have to rely on oh I am aware, you are aware, we may be putting ourselves in an abyss
44:23 where the burden to prove your reasonable doubt may be difficult to discharge. All right. And so
44:28 if you file an application for injunction, do well to serve the parties and let me give this example
44:35 in the demonstration. I saw the police, the recent one, issue a press statement
44:44 that they have filed an application for injunction and so that is noticed. The rules
44:51 state specifically how judicial processes ought to be said. And so you merely issue in a press
45:00 release that you have filed an injunction and so it is noticed to everybody may not meet that
45:05 judicial threshold. Right. Remember dealing with judicial. So you're right. So in very simple terms
45:13 the two of you teaching the law, writing about the law, and helping all of us to read and to
45:21 understand the law a lot better, you agree that the legal position in Ghana, general legal position
45:30 in Ghana, or the legal position on application for injunctions generally, is that once a party has
45:39 filed it and you have been served with a copy of the injunction application, you have become aware
45:49 that it is pending. Yes. You must stop. You should not take any further step. Yes. Until the case is
45:57 determined to know whether one person has won the injunction or the other person has lost it. Correct?
46:03 Yes. Yes. But this is not an offense. Is it an advice or it is compulsory?
46:16 Albert. Come again. Is it an advice or it's an offense or it's compulsory? I don't know how to
46:25 put it. That's yes. Yes. That's when the application for injunction is pending, you must not do anything
46:35 about about what you are you are you are being you are being stopped from doing. Yeah something
46:43 I think it's all three. It's an advice from us to the public out there. It's actually a compulsion
46:49 also by law that once you are served with an application for injunction, the law behoves on
46:55 you to stop whatever you are doing. And like my colleague said, it is out of respect to the court.
47:02 And if you do any act that tends to undermine the authority of the court. That's a monster content.
47:08 So you are taking a risk which you could be punished for. Exactly. Exactly. You could be
47:14 punished for one thing. Everything that you are aware of the pendency of the application. Yes.
47:20 You decided to disregard it. Bobby. Yes. I would say it's an advice that you hold your horses
47:33 until the court determines it so that you are not deemed to be taking the the the judicial power
47:39 into your own hands. But we can also not discount the fact that there may be some instances where
47:46 parties can weigh the the the consequences. Yes. And proceed. Because for example, for example,
47:57 and this is what practical experience during the COVID times, judges took a certain policy
48:03 not to send people behind bars for contempt. So they will find you 20,000 cities, 30,000 cities.
48:12 If you look at the value of what you want to do and the consequences, if you are not able to do
48:19 that, you as a party may wait and say, okay, maybe I'll go and take the conviction for contempt and
48:26 pay the fine and then let the matter proceed. So you know that you'll be found guilty, but you
48:32 weigh the balance, the truth, and then decide how to proceed. But it's unpredictable that you will
48:38 be given only a fine and you will not be thrown into jail for contempt. That was why I put that
48:43 in the time of the COVID. Most COVID is different. But in the time of the COVID, generally,
48:50 generally the policy was that don't throw people into jail for any minor offenses. Okay.
48:57 That was it. So during that time, you have people taking that risk. Okay. If you have a judge who
49:05 asks you to go two days, three days, then it becomes a problem. So I'm going to, we have done,
49:12 we have just very limited time. I'm going to invite comments and questions from our audience.
49:19 But I am very aware that the cases that other people have cited to suggest that
49:28 when an injunction application is pending and you have been served, it doesn't mean that,
49:34 you know, you have been stopped so you can go ahead and do whatever you want.
49:39 We will do a part two and I'll plead with you to make time with us so that we do a part two
49:46 so that you can try and distinguish those cases from the general rule that you have
49:52 explained to us today. I'm referring to cases like Republic versus Court of Appeal, ex parte
49:58 SITO, number one. I'm referring to the other case of the Republic versus Nana Crew, per quote,
50:07 the second ex parte Nana John Ezua. And how the court determined that they were not in contempt,
50:17 even though they had been cited for contempt for issues that had to do about one about injunction
50:29 and one about a judgment. So let's invite our audiences to share their views. And then
50:35 in part two, you do the distinguishing why these two cases are different
50:41 and not the general rule, as some people may want to say. The lines are open now 0302211692.
50:53 We have very limited time. Call and ask your question. Albert Jemfi and Bobby Banson,
51:02 both lawyers, lecturers and authors of legal texts, have been helping us to explain what
51:08 injunctions mean, and particularly whether an injunction application could be said to be as
51:17 effective as an order of the court when the process has been served on the other party.
51:27 So join us with your comments and your questions. This is the law. It's your legal light.
51:33 It's your help law. Whilst we we yes. Hello. Yes. What's your name?
51:39 My name is Christian. I'm calling from Kofi. I know you are calling from where?
51:45 Kumasi. Kofi, let's hear you. Kofi, I can't hear you.
51:56 The outcome of an injunction application is subject to an appeal.
52:11 Thank you very much. Bobby or Albert will answer your question for you. Who is next?
52:17 Okay, you hold on. Albert, you want to answer Kofi Annan?
52:23 Every decision of the court is subject to an appeal. Of course, that's why the decision is
52:30 made by the Supreme Court. If the Supreme Court granted the injunction, then of course you cannot
52:34 appeal. You can only apply for a review. But other than that, every decision of the court is subject
52:39 to appeal. And that includes the order of injunction. Great. And in fact, the two cases I
52:45 have just referred to you guys and say that we will look at them in our next discussion. They
52:49 were appeals over injunction contempt matters rather. Hello, Nicholas. Hello, Nicholas.
52:58 Nicholas, go ahead. If you can hear me, go ahead.
53:03 Yeah, my question is... Where are you calling from?
53:07 I'm calling from... Go ahead.
53:10 Go ahead.
53:13 My question is, I have to dispute with somebody who has to come and get injunction over me
53:22 on the farmland. And right now, the guy is farming on the land. So should I go and do my farm?
53:33 That person has got an injunction against you, order against you.
53:38 And that person is farming on the land. Yes, he's farming on the land.
53:45 And you are saying whether you should go and do it.
53:47 Can I also go and do farming as well? Can you also go and do farming? But you
53:52 are the one who has been injuncted. Yes.
53:55 Okay, thank you. Let me take the next caller before you give us responses. Hello.
54:01 Hello. Okay, Bobby, answer Nicholas's question.
54:10 Hello, Bobby. Yeah.
54:16 Hello. Yes, go ahead.
54:17 To add the appeal that if it's an injunction, you have only 21 days.
54:22 If it's an interlocutory injunction, you have 21 days within which to file the appeal.
54:27 But for the person who said the other side has obtained an injunction and is farming on the land,
54:32 nothing stops him from also applying for an injunction to tell the court that whilst I have
54:37 been restrained, that person is still going onto the land. And so restrain that person until the
54:42 final determination of the case. And if you also satisfy the conditions, then you establish a
54:49 prima facie case, then the court may restrain both parties. So injunction is not directed at
54:56 only one party. Sometimes if it's a landmark, the court can restrain both parties from going onto
55:03 the land until the final determination of the case. So you can court to seek that order against
55:08 the person. Right. And I'll ask Albert to expand on that because there are people who generally
55:14 think that once there is an injunction, it means that both parties have been stopped. When in fact,
55:23 in many of the cases, it is one party who has been stopped. Okay, let me hear Abdul first. Abdul
55:28 Fatah, you're calling from where? Tamale South to be precise. Tamale South. Let's hear you.
55:34 Good afternoon to you Mr. Samson. I'm very grateful to get your line this afternoon.
55:40 First to ask your leader bring the help. I just want to use the
55:50 DC. And that one is spending is spending so we will not comment on it.
55:57 Ask just ask your question generally quickly, please.
55:59 Right. Are you hearing me? Yes. Yes. If somebody has been injected not to do something,
56:14 and that person just regarded that person's life in function.
56:20 You mean do you mean an injunction application or an injunction order?
56:26 Do you mean an injunction application or an injunction order? An injunction order? Yes.
56:36 The court has decided and has said that the person should stop.
56:40 Exactly. Okay. Thank you. Okay. But you know, the EC case you are referring to, that's not the case.
56:48 The court has not determined anything. It's only an application. Thank you. Yes. Yes. Albert,
56:53 let's hear you. So once the person has been served with the order, and if we got it, that
56:58 would be a proper case for you to cite him for contempt. So that is the answer to cite the
57:05 person for contempt of course, but regarding the court order. All right. Unfortunately, I understand
57:10 that we have run out of time. And so this is where we will end part one of this discussion.
57:17 Because remember, we have not actually brought in the contempt proper on the discussion. We will do
57:23 so in part two. My guests have been Bobby Banson, who's a law lecturer and an author of legal text
57:31 on civil procedure. Albert Jemfi is also a law lecturer and an author of legal text. I'm Samson
57:38 Ladia Yenoni. This has been the law. It's your legal light. It's your health law.