JELR 64549 (HC) 1

CHECK FOR UPDATES

[FIND RATIO DECIDENDI, SIMILAR AND CITING CASES, AND TREATMENTS]

THE REPUBLIC
V.
THE ACTING CHIEF LABOUR OFFICER EX-PARTE BLUE SKIES
STAFF ASSOCIATION
(2010) JELR 64549 (HC)

HIGH COURT · SUIT NO. INDLM/7/2010 · JULY 2, 2010 · GHANA

CORAM

KWABENA ASUMAN-ADU

RULING
ASUMAN-ADU, J.

The Applicant issued a writ of summons against the Labour Department and the Respondent
herein on 25th November 2008 claiming as follows:

1. A declaration that, the Plaintiff’s registration as a trade union on 20th May 2008 and its Collective
Bargaining Certificate issued by the Defendants dated 11th July 2008 are valid.

2. A declaration that the Plaintiff has constitutional and legal rights to exist as a trade union
independently and free from interference of any person.

3. A declaration that the purported revocation and/or intended revocation by the Defendants of the
Plaintiff’s Bargaining certificate is unlawful, void and without any legal effect.

4. A declaration that the Plaintiff is the only and sole union entitled by law to negotiate a Collective
Bargaining Agreement with Management of Blue Sky.

5. An order of perpetual injunction restraining the Defendants by themselves, their privies,

representatives, agents, etc and other persons, including the Labour Commission and unions from

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 64549 (HC) 2

interfering with Plaintiff’s right to independent existence.

6. General damages or other / further orders.

7. Costs.

The writ together with the accompanying statement of claim, were served on the Defendants and
appearance was entered on their behalf. Directions have been taken and this court is yet to fix a
date for hearing. While the case was pending parties sought leave of the court to attempt
settlement.

According to the Applicant on 23rd March 2010 they met with the Respondent to attempt
settlement. After a lengthy meeting they could not reach amicable settlement so they indicated to
the Respondent and an officer from the Attorney General’s Department who were at the meeting
that the matter would have to be determined by the court. On the following day the Applicant
received a letter signed by the Respondent withdrawing the Collective Bargaining Certificate issued
lawfully to it. The Applicant claims that, that action of the Respondent is contemptuous so it has
brought this application for an order for leave to attach the Respondent who is the Acting Chief
labour Officer for contempt of court. The Respondent on the other hand has opposed the
application on grounds that by withdrawing the certificate she was performing her official function
so she is not in contempt. This Ruling is, therefore, in respect of the said application.

The Applicant contends that the letter withdrawing the certificate which was lawfully issued to it by
the Defendants is highly contemptuous of this court since it seeks to over reach the decision of the
court in the suit which is pending and yet to be determined. It claims that the validity or otherwise
of the Collective Bargaining Certificate is what this court is yet to determine in Suit no. INDLM/3/08
so by withdrawing it the Respondent has arrogated to herself the powers of the court and
prejudged the issue. The act of the Respondent is a clear and willful defiance of the court’s
powers, a gross and willful disregard for authority, process and proceedings of this court which
must be met with committal for contempt by this court. The Applicant claims that withdrawing the
Collective Bargaining Certificate which is the subject of this suit and whose validity or otherwise is
an issue for determination amounts to contempt of court as it interferes with the administration of
justice and brings same into disrepute and public opprobrium and ridicule.

The Respondent opposed the application in an affidavit in opposition filed on 20 th April 2010. She
avers that on 6th February 2004, her office under the hand of her predecessor issued a Collective
Bargaining Certificate to the Food and Allied Workers Union (FANU) of the Ghana Federation of
Labour appointing them as the appropriate representative to conduct with the employer of the
applicant collective bargaining on behalf of the workers of “Blue Skies Limited”. Subsequently when
she assumed office, another Collective Bargaining Certificate was issued from her office dated 11 th
July 2008 to the Applicant concerning same class of workers at “Blue Skies Products Ghana
Limited”. That this brought about some confusion and they realized that there had been a mix up in
the office as two separate files had been inadvertently opened for the Applicant’s company, one
bearing the name “Blue Sky Co. Ltd” and the other ‘Blue Sky Ghana Ltd.’ so the issuance of the
two separate Collective Bargaining Certificates was an oversight resulting from the confusion in the
company names.

According to the Respondent, they decided to conduct a referendum to determine the union with

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 64549 (HC) 3

the majority of workers to hold the certificate. They went on to hold a meeting in that regard and
whilst in the process of trying to get the referendum to take off the applicant issued a writ against
the Defendants.

The Respondent contends that it was during the pendency of the matter, that it came to their notice
that the Applicant had negotiated a Collective Bargaining Agreement on the strength of the invalid
Collective Bargaining Certificate with management of Blue Skies Product Limited. She claims that
attempts to get the Applicant to prepare for and attend the referendum proved futile. As by law two
collective bargaining certificates cannot exist side by side in the same organization, it became
necessary for her to revoke the latter one as it was void ab initio. So her action is not in any way
intended to bring the court into disrepute. By withdrawing the said Bargaining Certificate she was
only performing her statutory duties as a Public Servant who has a duty to issue such certificate
and withdraw same if any error is detected.

Submissions made by counsel for the parties flow from their various affidavits. According to
counsel for the Applicants by the act of the Acting Chief Labour Officer she was in clear contempt
of this court. This is because her act was prejudicial and it interferes with the administration of
justice so she must be committed for contempt of court. He referred the court to the following
cases in support of his submission:

a) Interim Executive Committee of the Apostolic Devine Church of Ghana v. Interim Executive
Counsel and others (1984 – 86) II Ghana Law Report (GLR) pg 182.

b) Republic v. Moffat. Ex-Parte Allotey (1971) 2GLR 391.

c) Republic v. High Court Accra Ex-Parte Afoda (2001 – 2002) SCGLR 768

Counsel for the Respondent on the other hand opposed the application and referred the court to
the following cases:

a) Agbleta v. The Republic (1977) 1 GLR 445.

b) Afari v. Amoako (1975) 1 GLR 307

c) Akele v. Coffie and Anor. And Akele v. Okine (consolidated) (1979) GLR 84.

d) The Republic v. Duffour, Ex-Parte Asare (2007-2008) 1 SCGLR 394

e) The Republic v. Osei Bonsu II, Ex-Parte Amadie and Bour (2007-2008) 1 SCGLR 566

She argues that being a contempt application there must be proof beyond reasonable doubt that
indeed contempt of court has been committed and the onus lies on the applicant to show in clear
terms that contempt has truly been committed beyond reasonable doubt as in criminal cases.
According to her from its statement of claim the Applicant knew that the certificate was going to be
withdrawn so if it has been withdrawn then there is no contempt. The Applicant has, therefore, not
been able to prove to the court beyond reasonable doubt that because the Chief Labour Officer
has withdrawn the certificate then she is in contempt. She claims that when the current Chief
Labour Officer took office she mistakenly issued another Bargaining Certificate to the Applicant
when one had already been issued to another union in respect the same class of workers. In such
a situation what the law says is that they should do a referendum to determine which of the unions

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 64549 (HC) 4

had the most number of people in order for that union to hold the certificate. The Applicants never
co-operated so the referendum never took place. In view of that the Chief Labour Officer had to
withdraw the certificate issued to the Applicants.

According to counsel for the Respondent the Respondent had to withdraw the certificate because it
came to her notice that in spite of all warnings that they have been given on the certificate
management went ahead and negotiated the Collective Bargaining Agreement with the Applicant.
So the Respondent is not in contempt. There was an error which she rectified. She has, therefore,
not done anything to take the powers of the court. The case can still go on and that her action has
not brought this court into disrepute. Counsel argues that the Respondent has not disobeyed any
order of the court so it cannot be said that they are in contempt of the court.

From the evidence before the court there is no doubt that the Bargaining Certificate issued to the
Applicant dated 11th July, 2008 was withdrawn by the Respondent at the time when suit number
INDL/3/08 was pending before the court. This is because the said certificate was withdrawn by the
Respondent on 24th March, 2010 and the suit was filed on 25th November 2008. So what the court
will now have to find out is whether or not by withdrawing the Bargaining Certificate whilst the suit
was pending the Respondent is in contempt.

Contempt of court has been defined by various authorities. I will consider the definitions given by
some of these authorities. It is held in Antwi v. Amponsah and Another (1961) 2 GLR 751 that to
constitute contempt of court, the act or conduct complained of must be of such a nature as could
unduly interfere with the administration of justice. That is such conduct as will prevent the court
from exercising its jurisdiction or as will make its decision tantamount to a miscarriage of justice.

It is also defined in Republic v. Moffat and Orthers, Ex-Parte Allotey (supra), as any conduct which
tends to bring the authority and administration of the law into disrespect or interfere with any
pending litigation. The definition of contempt of court given in Moffat’s case was repeated in Interim
Executive Committee of Apostolic Devine Church v. The Interim Executive Council and others
(supra) as any conduct which tends to bring the authority and administration of the law into
disrespect or interfere with any pending litigation.

Contempt of court is also defined in the case of In Re-Effiduase Stool Affairs (No. 2); Republic v.
Numapaw, President of the National House of Chiefs and others; Ex-parte Ameyaw II (No. 2)
(1998-99) SCGLR 639. According to that case, contempt of court is constituted by any act or
conduct that tends to bring the authority and administration of the law into disrespect or disregard
or to interfere with, or prejudice parties, litigants, or their witnesses in respect of pending
proceedings, contempt of court may be classified either as direct and indirect or civil and criminal.
Direct contempts are those committed in the immediate view and presence of the court such as
insulting language or acts or violence or so, near the presence of the court as to obstruct or
interrupt the due and orderly course of proceedings. Indirect or constructive contempts are those
arising from matters not occurring in or near the presence of the court, but which tend to obstruct
or defeat the administration of justice, such as failure or refusal of a party to obey a lawful order,
injunction or decree of the court, laying upon him a duty of action or forbearance. Civil contempts
are those quasi-contempts consisting in failure to do something which the party was ordered by the
court to do for the benefit or advantage of another party to pending proceedings; while criminal
contempts are acts done in respect of the court or its processes or which obstructs the
administration of justice or tend to bring the court into disrespect.

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 64549 (HC) 5

From the explanation given to contempt of court by the authorities referred to above, contempt of
court is not limited to only situations where an order of the court is violated by the Respondent as
submitted by counsel for the Respondent in the instant case. Any act or conduct that tends to
interfere with the administration of justice may constitute contempt of court. See also the case of In
Re-Kwabeng Stool; Republic v. Broni; Ex-parte Karikari and Anor. (2005-2006) SCGLR 35. See
also the case of Republic v. Akenten, Ex-parte Yankyera (1993-94) 1 GLR 246.

Once a suit is pending and parties are made aware of the pendency of the said suit, any conduct
on the part of any of them that is likely to prejudice a fair hearing of the suit or interfere with due
administration of justice or will prevent the court from exercising its jurisdiction is tantamount to
contempt. See the case of Aryeetey v. Agbofu II and another (1994-95) GBR 250.

Also in the case of Attorney General v. Times Newspapers Ltd (1993) ALL ER 54 at page 66, Lord
Morris described contempt of court as follows:

“The phrase Contempt of Court is one which is compendious to include not only disobedience to
orders of a court but also certain types of behaviour or varieties of publications in reference to
proceedings the bounds which liberty permits.”

The same case states at the same page as follows:

“In an ordered community courts are established for the pacific settlement of disputes and for the
maintenance of law and order. In the general interests of the community it is imperative that the
authority of the courts should not be imperiled and that recourse to them should not be subject to
unjustifiable interference. When such unjustifiable interference is suppressed it is not because
those charged with responsibilities of administering justice are concerned for their own dignity. It is
because the very structure of ordered life is at risk if the recognized courts of the land are so
flouted that their authority wanes and is supplanted.”

The explanations given to contempt of court by these authorities referred to above, show that in
addition to being a disobedience to a court order, contempt of court is also interference in the
administration of justice which is a crime which if one is found liable of it may be committed to
prison or may be ordered to pay a fine.

Counsel for the Respondents referred the court to several cases and submitted that contempt of
court is where an order of the court is violated by the Respondent. It is true that, most of the
authorities on contempt of court limit it to a situation where an order of the court has been violated
by the Respondent, the Effiduase Stool affairs’ case and other authorities go beyond the existence
of a court order which has been violated to include any act or conduct which obstructs the
administration of justice or tends to bring the court into disrespect. Contempt of court is therefore
not limited to only where a court order has been violated.

The Supreme Court states in the same Effiduase Stool affairs’ case that since contempt of court is
a quasi-criminal case, the standard of proof required was proof beyond reasonable doubt. An
applicant must, therefore, first make out a prima facie case of contempt before the court could
consider the defenses put up by the respondents. See also the case of Republic v. Osei Bonsu II,
and Others, Ex-Parte Amadie and Bour (supra) in which it was held by the Supreme Court that it is
well settled that civil contempt is a quasi-criminal process and the onus of proof is beyond
reasonable doubt. To be guilty of contempt of court , there must be conduct, action or omission on

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 64549 (HC) 6

the part of the person charged with contempt which tends to undermine the authority of the court
by interfering with the process pending in that court.

See also Section 13 (1) of the Evidence Act 1975 (NRCD 323) which states as follows:

“In any civil or criminal action, the burden of persuasion of the commission by a party of a crime
when directly in issue requires proof beyond a reasonable doubt.”

From the authorities referred to, contempt of court being a quasi-criminal case requires proof
beyond reasonable doubt. So if the Applicant is unable to discharge that burden, the application
fails.

With the above discussion of the law on contempt of court I now proceed to consider the
allegations of fact in support of the application as enumerated earlier on in this ruling. In the current
case, by their writ the applicants are claiming among other reliefs a declaration that the Plaintiff’s
registration as a trade union on 20 th May 2008 and its Collective Bargaining Certificate issued By
the Defendants dated 11th July 2008 are valid. They are also claiming a declaration that the
purported revocation and/or intended revocation by the Defendants of the Plaintiff’s Bargaining
Certificate is unlawful, void and without any legal effect. According to the Applicant it is a duly
registered labour union under the laws of Ghana and that sometime in July 2008 it went through all
legal processes to obtain a certificate as a trade union in order to protect the interests of its
members. It was subsequently issued with a valid Bargaining Certificate by the Respondent who
caused same to be published in gazette notification.

The Applicant claims that for some time now there has been attempts by some other unions to
unionized its members. It further claims that this purported unionization has been an issue before
the National Labour Commission. In an attempt to resolve the issue the Defendants invited the
Applicant to a meeting. At the said meeting the Defendants stated that in view of the scramble for
Plaintiff’s members by other unions they had revoked Plaintiff’s Bargaining Certificate or they were
about to revoke same upon instructions by National Labour Commission. According to the
Applicant it took serious exception to the conduct of the Defendants as same smacked of
arbitrariness and an infringement on its Constitutional Rights and, therefore unlawful. It, therefore,
took an action against the Defendants on 25th November, 2008 claiming among other reliefs, a
declaration that the Bargaining Certificate issued to the Applicants by the Defendants is valid and
that the purported revocation and or intended revocation by the Defendants of the said Certificate
is unlawful, void and without any legal effect. Whilst the said suit is pending and yet to be
determined by this court the Respondent wrote to the Applicant on 24th March 2010 withdrawing
the Bargaining Certificate issued to it on 11th July 2008 by the Defendants. The Applicant claims
that the action taken by the Respondent is highly contemptuous since it seeks to overreach the
decision of this court in suit number INDL/3/08 which is yet to be determined.

The Respondent on the other hand claims that the Applicant has not been able to prove beyond
reasonable doubt that the Respondent is in contempt. This is because the authority of the court to
declare on the case has not been taken away by the action of the Respondent. The Respondent
claims that she mistakenly issued out the Bargaining Certificate to the Applicant. She was,
therefore, supposed to have a referendum to determine which union holds the most number of
people to be allowed to keep the certificate. The Respondent wrote to the Applicant but they did
not co-operate so there was nothing for her to do other than to withdraw the one which was

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 64549 (HC) 7

mistakenly issued and that was the one given to the Applicant. So the Respondent simply rectified
her error and that she realized that all her efforts to bring the parties to a referendum had failed.
So by withdrawing the Bargaining Certificate mistakenly issued to the Applicant she is not in
contempt of court. She was performing her statutory duty.

I, perfectly agree with the Respondent that it is her right to withdraw bargaining certificates
mistakenly issued to unions including the Applicant. However, since issues on the withdrawal of the
Bargaining Certificate issued to the Applicant by the Respondent are pending before this court, the
Respondent should have waited for the final determination of the case before taking that action.
The writ, bordering on issues of the Bargaining Certificate between the Applicant and the
Respondent puts a limit on her right to withdraw the certificate, whilst the suit is pending. See the
case of Republic v. Akenten Ex-Parte Yankyera (supra). In that case the appellant abolished a stool
which was the subject matter of litigation on grounds that the stool was created by him and also he
was exercising his prerogative powers as the president of the Traditional Council. It was held that
once the stool was the subject matter of a case pending before the Judicial Committee of the
Traditional Council, he did not have the power to abolish it. His act was therefore interference with
the administration of justice so it was contemptuous of the Judicial Committee and for that matter
the Traditional Council.

In the instant case the writ filed by the Plaintiffs, borders on issues on the withdrawal of the
Bargaining Certificate between Plaintiffs and the Defendants which are yet to be resolved. So
withdrawal of the Bargaining Certificate of the Applicant at a time when the writ is pending amounts
to interference with due administration of justice which amounts to contempt of court. By
withdrawing it the Respondent has declared that it is valid and that her action is lawful there by
taking away the court’s authority to decide on the case.

The Respondent tries to justify her action by saying that whilst she had not determined which of
the bargaining certificates issued to the two different unions was valid the applicant went ahead to
negotiate with the same certificate. So she had to withdraw that certificate. I find it difficult to agree
with the Respondent on that. Since the case was pending before the court if she was not getting
co-operation of the Applicant she should have come to court for an interim order on it but not to
arrogate to herself the power to decide on it thereby taking over the power of the court. The court
even takes notice of the fact that the law is very clear on what should be done in such
circumstances. It is provided at Regulation 10(1) of Labour Regulations, 2007 (L.I. 1833) that in
such a situation she should invite the unions to a meeting to undertake verification to determine
which union represents the majority of the workers for the bargaining certificate to be issued to it.
This shows that since she claims she was not getting the co-operation of the Applicant she should
have come to court for an order to compel the Applicant to co-operate but not to unilaterally
withdraw the certificate. Rather, what she did was unlawful since she did not have the authority to
unilaterally withdraw the certificate in the circumstance in which she found herself without
undertaking the verification to determine which of the unions should have it. The act of the
Respondent, therefore, tends to prejudice the matter before this court and it tends to bring the
authority and the administration of the law into disrespect or disregard.

As has been stated elsewhere in this ruling, contempt of court is a quasi-criminal case and the
punishment for it might include a fine or imprisonment. So the standard of proof required is proof
beyond reasonable doubt. An applicant must, therefore, first make out a prima facie case of

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 64549 (HC) 8

contempt before the court could consider the defenses put up by the respondents.

The evidence before this court in the instant case shows that the applicant has proved beyond
reasonable doubt that the act of the Respondent was intended to frustrate the Applicant and
prejudice the matter before the court in respect of the Applicant. Her act is, therefore,
contemptuous, so I find the Respondent liable for contempt of court. She is as a result ordered to
withdraw the letter dated 24th March, 2010 withdrawing the Applicant’s Bargaining Certificate within
seven days time. A copy of the said letter must be sent to the court. She may then apply properly
to the court for an interim orders to be made on which of the certificates could be used to bargain
with their employers. She is cautioned and discharged. She is, however, ordered to pay costs of
GH¢ 500.00 to the Applicant.

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 64549 (HC) 9

APPEARANCES

MR. ANDREWS TETTEH FOR THE APPLICANT; MRS. SYLVIA ADUSU PRINCIPAL STATE
ATTORNEY FOR THE RESPONDENT.

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation