CONTEMPT CASE AGAINST ATTORNEY-GENERAL REUSED

THE Accra Fast Track High Court has refused the contempt application filed by a former Deputy Director of Operations of the Ghana Immigration Service (GIS), Mr Kojo Hodare-Okae, against the Attorney-General and Minister of Justice, Mr Joe Ghartey.
The applicant’s motion sought to cite the A-G for contempt for failing to comply with the court’s earlier judgement of May 27, 2005, that he should be reinstated in the Public Service where the President so desired, provided he suffered no loss of salary or allowances he received as Deputy Director of the GIS.
The order was to take effect from September 2003 when his appointment was terminated up to the date of judgement when he was to be restored to the government payroll.
Joined to the suit was the Minister of the Interior, Mr Albert Kan-Dapaah, as well as the GIS.
However, the court, presided over by Mr Justice P. Baffoe-Bonnie, a Court of Appeal judge with additional responsibility as a High Court judge, stated that the A-G could not be cited for a court order which elapsed before the applicant reached his retiring age of 60 years.
According to the court, it was not constitutionally permissible to reinstate the applicant in the Civil Service because the President was not notified about his plight as per the court order.
It said that after its judgement of May 2005, the entry of judgement was filed in April 2006 while the applicant said he filed the certificate of judgement on March 16, 2007, out of the abundance of caution but that was a procedural requirement although he was not aware of its full effect.
It said the A-G could only be cited for contempt if he violated or breached the court’s orders wilfully and while Article 88 (5) of the constitution made it possible for the A-G to be sued, that section was misapplied by the applicant.
The court held that the respondent could not be attached to an action of the President, saying that “since contempt is quasi-criminal I do not see how the A-G can be sued for the infractions of the President or any state institution”.
“The A-G cannot be attached for contempt for the President’s failure to do something, since no order was directed at him,” it said, and added that the applicant’s failure to put in the legal process before reaching the retiring age of 60 years disabled the President from reinstating him.
The court brought to the fore hindrances in suits against the A-G and indicated that it must be proved that the person who was being cited for contempt had breached an order of the court and fell within the purview of Article 88 (5) of the constitution.
It wondered whether it was the A-G as an officer or institution who should be sued and stated that in the instance case, at the time the judgement was given in 2005, there was an A-G who was replaced in a Cabinet reshuffle and asked who should be cited in this instance.
An affidavit in support of the applicant’s motion said on September 5, 2002, he received a letter signed by Dr Kwame Addo Kufuor, then Minister of the Interior, informing him that he had been transferred from the GIS to the Free Zones Board (FZB).
It said the applicant later realised that his transfer was a hoax, since the FZB had no role for him to play. He, therefore, refused to accept his posting.
According to the affidavit, the applicant, in view of the frustrations he went through because the FZB had refused to accept him, petitioned various high government officials to intervene on his behalf but to no avail, compelling him to resort to the law to seek redress.
Consequently, he filed a writ against the A-G, the Interior Minister and the GIS, saying that his transfer amounted to a dismissal and, therefore, wrongful.
He sought for his reinstatement and restoration of all his salaries and entitlements from the time of his transfer to the time of the writ, among other reliefs, and upon which the court granted the reliefs and awarded damages.
Mr Akoto Ampaw who represented the applicant said after the court judgement, they thought that the matter could be resolved amicably. Therefore, they approached the defendants without using the coercive powers of the court and wrote a letter dated April 10, 2006 to the A-G.
“Portions of the letter showed that we have been having several discussions with the A-G,” counsel said, and added that the letter was written pursuant to the discussions with the hope that the issue could be resolved.
Counsel said it had never been their position to battle the government but wanted the applicant reinstated; however, the A-G kept giving promises to comply with the court order, adding that “the A-G gave the impression that he was amenable to this and we have been particularly urging him on all this while”.
According to Mr Akoto Ampaw, the entry of judgement was made on March 3, 2006 and served on the A-G on April 4, 2006 to enable him to take the necessary steps to have the applicant reinstated.
Counsel agreed with the court when the judge said that the A-G as the principal legal advisor of the President was not his representative and could only give advice which the President was not bound to take.
Mr Akoto Ampaw said although the applicant had gone on retirement there was the need for him to go for his retirement benefits and he needed to be placed in an institution to enable him to access it because under the Civil Service he would be asked to indicate where he worked.
“If the President did not reinstate him then it means that there is no remedy for him under the justice system,” counsel said, and added that the reinstatement did not mean that the applicant could go back to work but to enable him to have access to his full entitlements as someone who reached the retirement age while in the service.
Mr Ghartey, who defended himself, described the application as totally misplaced and flawed because it attacked his person and not his office and that the applicant had not been able to prove that he disobeyed the court’s order.
“Contempt is quasi-criminal whose punishment is either a fine or imprisonment and, therefore, the applicant must prove a prima facie case of contempt,” he said.
According to him, the first hurdle which had to be cleared by the applicant was whether the person in court was the one the order was made against, since the order for reinstatement was not made against the A-G but the President.
Mr Ghartey further said up until the time that the applicant was to be reinstated, he had not served the A-G with a certificate of judgement to enable him to advice the President; therefore, the President was incapable of reinstating him under Article 119 of the Constitution.