McDan convicted for contempt over disputed land; fined Gh¢40,000

Businessman and Chief Executive Officer of McDan Group of Companies, Daniel McKorley, has been convicted by the Accra High Court for contempt.

Daniel McKorley affectionately called McDan was found guilty after the court held that he had deliberately disobeyed orders of the High Court over a disputed parcel of lands at East Legon.

The High Court (General Jurisdiction) presided over Justice Kweku Tawiah Ackaah-Boafo, a Justice of the Court of Appeal sitting as an additional High Court Judge imposed a fine of GHc40,000 on him.

The court said GHc15,000 out of that fine should be given to the applicant in the matter.

On May 20, last year, the Applicant, Al-Hassan Iddisah filed a contempt application to vindicate the law and its sanctions following the respondent’s forcibly taking over land in dispute.

He accused the Respondent, Daniel McKorley of breaking the law by wilfully disrespecting an order of the High Court and thereby bringing the administration of justice into disrepute.

Subject matter

The background of the case according to the Applicant is that his late wife and mother own two contiguous plots of land at East Legon, Accra and have had the land since 2002 until the Respondent forcibly took over from them.

According to the Applicant, even though the Respondent knows the interest of his family, contrary to the Rules of Court he invoked the jurisdiction of the District Court, Madina by an ex-parte motion to have possession of the lands.

The application, the applicant said was granted and with the assistance of the police, he (Respondent) took possession of the land.

The Applicant said he applied for certiorari to quash the order of the Madina District Court on grounds of “want of jurisdiction, and/or excess of jurisdiction, violation of the rules of natural justice and nullity” and the same was granted by the High Court on June 9, 2020.

The Applicant deposed that “the record of proceedings Exhibit “A” shows that the Respondent was represented by his lawyer who was in Court on the 9th of June, 2020.

The Applicant further deposed that, notwithstanding the ruling of the Court, the Respondent remained in possession of the land and “is contumaciously developing the land”.

Penal notice

The Applicant further argued that “a penal notice and a copy of the ruling was filed for service on the Respondent but all attempts at personal service have failed, an order was obtained to serve him by substituted service with a copy of the ruling/order of 9th June 2020 and the penal notice as well as the day’s courts notes in the following manner:

“By posting copies on the Notice Board of the Honourable Court, ….on the wall on the land, the subject matter of the suit and resultant application for certiorari.

“By posting a copy at the offices of McDan Group, Okponglo-East Legon, Off the Madina, Accra Highway.

“By one-time publication in a National Daily” and “a copy of the Order has been attached as Exhibit “B”.

The further deposition of the Applicant was that he complied with the order made by the Court and posted copies at all the places ordered to be posted and also published a copy in the Ghanaian Times Newspaper on Thursday, March 24, 2022. A copy of the publication was attached as Exhibit “C’.

The Applicant contended that despite the service of the order and the penal notice, the Respondent continues to build on the land in flagrant disregard of the order of the Court.

He tendered in photographs embossed with dates showing workers alleged to be on the land after the service of the order of the Court and contends that Respondent’s continuation of the construction “is a contumacious disrespect of the orders of the Court and constitute contempt of Court which must be punished”.

He, therefore, prayed the Court to convict him and punish him since the Respondent has no excuse to say he was not aware of the order because his lawyer was in Court when the order was made.

Respondent’s reply

In a 16-paragraph affidavit in opposition against the application, the Respondent argues that he had not done anything wrong that required him punished.

He argued that “I acquired a parcel of land situated at Mpehuasem from one Yaw Adomako Koduah sometime in the year 2016 and had (sic) since been issued with a Land Certificate numbered GA53817. See Exhibit “A”.

He said upon the said acquisition he obtained an order from the Madina Magistrate Court to take possession of the same which he (sic) did.

He argued that he then started developing the land into apartments to be sold to prospective purchasers and subsequently the order obtained from the Madina Magistrate Court was quashed by this Honourable Court on the 9th of June 2020.

He contended that the decision of the Honourable Court was not brought to my attention in “good time” and that sometime in March 2022, “it’s almost two years after the said ruling that my attention was drawn to the decision by my workers who saw copies posted on the walls of McDan Group of Companies building at East Legon”.

According to him, at the time the decision was brought to his attention, he had already “finished construction of the apartments and even sold them.”

He also deposed that the Applicant has issued a fresh writ of summons against him and his grantor at the Land Division of the High Court for declaration of title to the land and served him by substituted service.

According to him, “by the time both the Writ of Summons and the application for committal for contempt were served me, I had already finished with the construction of the apartments”.

He concluded by stating that “it is not true that I have disobeyed the Court’s Order. The fact is that the said Order was not served on me or brought to my attention in good time”. He, therefore, prayed the Court to dismiss the application.

Court’s analysis

Justice Ackaah-Boafo after analysing the arguments from the parties said the respondent’s position that the matter was brought to his attention later was an afterthought.

“From the above, therefore, and with the greatest respect to the Respondent and Counsel, the deposition and submission that at the time the decision of this court came to the knowledge of the Respondent he had completed the construction of the buildings are not sustainable because they are an affront to common sense.

“The Court is not persuaded by the deposition and the photographs attached. In the opinion of the Court, the photographs attached to the affidavit of the Respondent are a belated self-serving attempt by the Respondent to mislead the Court and the same is rejected by the Court.

“It is the holding of the court that the Respondent after becoming aware of the order of the Court brazenly chose to continue to build on the land to undermine and over-reach the Court’s authority and therefore interfered with the administration of justice.

“I shall therefore answer and resolve the first question posed above against the Respondent,” Justice Ackaah-Boafo ruled.

“Further, I also have no hesitation to conclude that the Respondent’s action was willful. To my mind, the deposition that the decision did not come to his attention on time, which was also repeated by his Counsel is disingenuous and flawed.”

No air of reality

It was the opinion of the court that “there is no air of reality to it because I have carefully read all the processes filed and the various attempts to serve the Respondent with the order of the court which was unsuccessful.”

“I also wish to say that if indeed the Respondent is diligent and law-abiding as he claims, he would have verified from Counsel he instructed to be in Court for the certiorari application in June 2020 and/or followed up with the Court to find out what happened.”

The court said, “the fact that he did not do any such thing but continued to build on the land, even though he was aware that the Applicant had filed process in the High Court to challenge the ex parte order he obtained at the District Court, convinces me that he just could not be bothered about what happened.”

To the mind of the court, “the deposition that the decision did not come to him on time clearly is an afterthought and I find it unworthy of consideration and belief and therefore I reject same.”

“In order that I may not be misunderstood and to be clear: while the Respondent cannot be fixed with notice of the Order of Certiorari which is a precursor to the contemptuous conduct before he was served, he has brought his bona fides and reputation into discussion and thus, the totality of his actions bears commentary.”

“It is my finding that despite the denial; I am not convinced by the explanation given by the Respondent because it is not persuasive and it is demonstrably hollow.

The court ruled that “based on all of the evidence, it is my holding that the Respondent adopted tactics to ignore the order of the court just to hurriedly build on the land and therefore his acts were deliberate and planned. It was a well-orchestrated plan by the Respondent to undermine the Court’s authority and the same was therefore wilful and flagrant of the Court’s authority. Undoubtedly, in my view, it is exactly for people like the Respondent and their actions that the law of contempt was evolved.”

Sentence

The court ruled that “I hold the view that a case of contempt has been properly made against the Respondent herein both under common law and statute; that is Section 13(1) of NRCD 323.

“Undoubtedly, the Applicant has met his onus of proving the Respondents’ guilt beyond a reasonable doubt. Consequently, I hold the Respondent in contempt of court and CONVICT him accordingly.

In imposing the sentence, Justice Ackaah-Boafo said, “I wish to disabuse the popular imaginary of the notion that the rich and influential people in our society together with public officials can disregard the rule of law and then when the wheels of justice catch up with them, proffer an apology.”

“For that matter, in this case, my initial inclination was that a fine will amount to a mere slap on the wrist of the Respondent and that incarceration is appropriate.

“However, having heard from both Counsel and considered the passionate plea for leniency by learned Counsel for the Respondent and also taken into consideration the fact that this is the Respondent’s first brush with the law, I am of the opinion that the imposition of a fine is appropriate,” the Justice of the Court of Appeal stated.

“Consequently the Court imposes a fine of GH¢40, 000.00 against Respondent; in default, he shall serve 21 days in jail.

“The fine when paid, GH¢15,000 out of the total of GH¢40,000 shall be paid out to the Applicant to help him offset part of his legal costs. No further Order as to Cost.”