THE REPUBLIC vs. OPANIN F.O. OSEI & 8 OTHERS. EX PARTE; ABUSUAPANIN SAMUEL ODOI & 3 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KOFORIDUA - A.D 2017
THE REPUBLIC
OPANIN F.O. OSEI & 8 OTHERS - (Respondent/ Appellants)
EX PARTE; ABUSUAPANIN SAMUEL ODOI & 3 OTHERS (Applicants/ Respondents)

DATE:  25TH OCTOBER, 2017
SUIT NO:  H1 / 03 / 2017
JUDGES:  DENNIS ADJEI J PRESIDING, CECILIA SOWAH J.A, L. L. MENSAH JA
LAWYERS:  FRANK YAKUBU FOR APPLICANTS/RESPONDENTS
FRANK GEORGE DONKOR ESQ. FOR 2ND, 4TH, 5TH AND 7TH RESPONDENTS/APPELLANT
JUDGMENT

ADJEI JA:

The High Court, Koforidua on 2nd June, 2014 convicted the 2nd, 4th and 5th Respondents for contempt and sentenced each of them to a fine of GH¢1,000.00 or 6 months I.H.L. The convicts dissatisfied with the conviction and sentence imposed on them by the trial High Court filed an appeal against both conviction and sentence to this Court. The notice of appeal against the conviction and sentence was filed on 20th June, 2014. In this appeal, the 2nd, 4th and 5th Respondents before the trial High Court are the Respondents/Appellants. The Applicants before the trial High Court are the Applicants / Respondents. For easy reference in this appeal, the Respondents/Appellants shall maintain their respective designations before the trial High Court as Respondents and the Applicants /Respondents as Applicants. The 6th Respondent before the trial High Court was convicted and sentenced by that Court and did not appeal against his conviction.

 

The brief facts of the case before the trial High Court which culminated in this appeal were that the applicants filed a petition against the 4th Respondent and the 1st,2nd,3rd and 5th Respondents herein at the Judicial Committee of the Akwamu Traditional Council in April, 2008 claiming, inter alia, a declaration that the stool in the possession of the petitioners therein is the original Gyansere Stool , and an order declaring the installation of the 4th Respondent herein as Gyansere null and void . The Applicants in their supporting affidavit to the application for contempt deposed that they belong to the Royal Aduana Amoakware Family of Akwamu and it is the only family which occupies the Kyidom Stool of Akwamu. They further deposed that the stool name " Gyensere" is the title exclusively used by the occupants of the Kyidom Stool of Akwamu Traditional Council but the Respondents have conferred the title "Gyensere " on the 4th Respondent who hails from a different family and occupies the Pianko Stool and therefore not eligible to assume that stool title preserved for the Respondents Royal Family. The 6th Respondent was the registrar of Akwamu Traditional Council who submitted the name of the 4th Respondent to the National House of Chiefs to be gazetted with the stool name " Gyensere" when it was alleged that there was a pending suit pending before the Judicial Committee of the Akwamu Traditional Council as to whether or not the 4th Respondent is eligible to use that title or that. The 7th Respondent was the acting President of the Akwamu Traditional Council and he together with the 6th Respondent wrote to the Eastern Regional House of Chiefs and the National House of Chiefs to register and gazette the 4th Respondent with the stool title Gyensere. The Applicants did not depose to the specific roles played by the 1st, 2nd, 3rd, 5th and 8th Respondents but the Applicants in their paragraph 12 of the supporting affidavit deposed that they were fully aware of the petition filed before the Judicial Committee of the Akwamu Traditional Council and were the 1st, 2nd, 3rd and 5th Respondents respectively therein and should not have applied for the 4th Respondent to be gazetted with the stool name Gyensere. All the Respondents denied the fact that they were in contempt of the proceedings pending before the Judicial Committee of the Akwamu Traditional Council in their respective affidavits in opposition filed before the trial High Court.

 

The trial High Court convicted the 2nd, 4th 5th and 7th, Respondent for contempt and sentenced them accordingly. The 2nd, 4th and 5th Respondents dissatisfied with their conviction and sentence filed two grounds of appeal against both conviction and sentence. The grounds of appeal are as follows:

 

"(i) The judgement is against the weight of evidence, and

(ii) That the trial judge erred in holding that the Appellants were likely to have quietly pushed the gazetting process to completion."

 

The second ground of appeal is a subset of the first ground and would be discussed as part of it. The first ground of appeal which is the omnibus ground of appeal entitles an appellate court to assume jurisdiction over an appeal and rehear it in its entirety with particular reference to questions of fact. We are therefore to evaluate the entire evidence on record, correct all the errors committed by the trial Court , rehear the corrected record , apply the correct standard of proof and come to a decision which is in consonance with law. The errors in a judgement based on facts are examined from two angles. They are errors committed by the trial Court in its evaluation of the evidence in respect of relevant evidence which were not considered in accordance with law, and the evidence which were material but the trial Judge failed to evaluate in accordance with law. The error correction function exercisable by the appellate courts enable them to rehear the evidence on record with the same advantage as that of a trial judge may subject to the evidence used by the trial judge to discredit a witness and not apparent from the record of appeal.

The role of the appellate court in determining the omnibus ground of appeal has been decided in several cases including Djin v Musah Baako [2007-2007] SCGLR 686 and Tuakwa v Bosom [2001- 2002] SCGLR 61. In Djin v Musah Baako supra, the Supreme Court described the role of the appellate judge when determining the omnibus ground of appeal in the headnote 1 at page 687 of the record. The Court held thus:

where an (as in the instant case), an appellant complains that a judgement is against the weight of evidence , he is implying that there were certain pieces of evidence on the record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him."

 

We embark on the error correcting exercise to determine material pieces of evidence which were wrongly evaluated and pieces of evidence which are material but were not considered and their cumulative effect on the judgement. The Applicants claimed in their motion for committal that the Applicants were in contempt of proceedings before the Judicial Committee of the Akwamu Traditional Council and the burden of proof would be on them to prove that there was a pending suit before the Judicial Committee of the Akwamu Traditional Council when the Respondents submitted the name of the 4th Respondents to be gazette.. It is the Appellants who have the burden of persuasion to prove that there was a petition pending before the Judicial Committee of the Akwamu Traditional Council when the 4th Respondent’s name was submitted to the National House of Chiefs to be gazetted in the National Register of Chiefs. Section 14 of the Evidence Act NRCD 323 which is on allocation of burden of persuasion provides thus:

 

“Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”.

 

Until the Applicants proves their case by preponderance of probabilities that there was an action pending before the Judicial Committee of the Akwamu Traditional Council when the 4th Respondent’s name was submitted to the National House of chiefs to be gazetted, the Applicants would be deemed to have failed to persuade the Court and the burden of persuasion will not be shifted unto the Respondents.

 

Therefore, the burden of producing evidence to prove that there was a pending litigation before the Akwamu Traditional Council when the 4th Respondent’s name was submitted to the National House of Chiefs to be gazetted shall be on the applicants who has the burden of persuasion as to that fact.

 

We now address the effect of the supplementary affidavit filed by the Applicant’s during the pendency of the contempt application without the leave of the court. The issue is wholly unanswerable and it will not serve any useful purpose to invite the parties to address the court on it. The cases of Akuffo-Addo vs Catheline [1992]1 GLR 377 and Tindana (No.1) vs chief of Staff & Attorney-General (No.1) [2011] 2 SCGLR 724 affirmed the trite law that where a legal issue arises in the course of an appeal and the court is of the opinion that that legal issue is wholly unanswerable,  the court is not bound to invite the parties to address it on that legal issue.

 

The trial High Court Judge heavily relied on the supplementary affidavit filed by the Applicants on 31st March, 2014 which was filed without the leave of the Court. The trial High Court judge in relying on the processes filed at the High Court as an amendment to the motion for committal for contempt and the supporting affidavit described the process thus:

 

"On the contention that the process was a nullity because the High Court has no jurisdiction in chieftaincy matters, even though it is not in doubt that the High Court has no jurisdiction in chieftaincy matters, the process filed therein was valid until set aside and any one acting in contravention of it risked being liable in contempt."

 

The above ratio by the trial High Court was over simplified. Firstly, the process which the High Court relied on was filed as a supplementary affidavit which is an amendment to the application for contempt without the leave of the Court. Order 50 rule (3) sub rule (3) is on amendment to an application for committal. It provides thus:

 

"Without prejudice to the powers of the Court under Order 16 Rule 7 no grounds except the grounds set out in the affidavit in support of the motion shall be relied upon at the hearing of an application for order of committal ".

 

The above subrule states unambiguously that in committal proceedings, amendment in the form of supplementary affidavit filed without the leave of the Court shall not be relied upon at the hearing of the application. Amendment is so important that failure to comply with it renders the process void. It is not every non- compliance in the High Court (Civil Procedure) Rules which can be waived under Order 81. Failure to comply with the laws on amendment is fatal. Where an amendment is granted by a court and the applicant fails to comply within the terms of the order granting the amendment or the amendment is not filed within the time specified in the order or where no date is specified, within fourteen days after the order is made, it shall cease to have effect unless the time is extended by the court.

 

Order 16 Rule 8 of C.I. 47 which is on the legal effect of failure to amend after order provides thus:

“Where the court makes an order giving a party leave to amend a writ, pleading or other document, then, if that party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, within fourteen days after the order is made, the order shall cease to have effect but without prejudice to the power of the Court to extend the period”.

 

In cases where leave is granted for an amendment to be filed and it is not filed in accordance with the order granting it, it will not have a legal effect unless the court directs otherwise. It stands to reason that where an amendment is to be made with the leave of the Court and it is not made, it will be ipso facto void.

 

Order 50 rule 3 subrule (3) expressly states that an amendment to the grounds set forth in the supporting affidavit unless leave is granted by the court to file same. In the case of Spynx Capital Market and Another (substituted by) Dominion Corporate Trustees Limited v National Investment Bank and 2 Others Suit No J4/63/2016 delivered on 21st June, 2017 (unreported ) the Supreme Court in addressing some of the rules whose non- compliance is fatal held thus :

 

"It is to be stressed that the provisions of Order 2 rule 4(2) of C..I. 47 are obligatory, and it is not one of those provisions which the court is under Order 81 to waive for non- compliance."

 

We are of the opinion that the supplementary affidavit filed by the Applicants to introduce new grounds into the grounds contained in the application for contempt was a nullity and we hereby declare it as such. We hereby expunge from the records the supplementary affidavit filed by the Applicants without the leave of the trial High Court on 31st March, 2016. We further expunge from the judgement any finding of fact grounded on it and this is made in accordance with section 8 of the Evidence Act which empowers the court to exclude evidence which was inadmissible per se. In the case of Edward Nasser & Co. Ltd vs. Mcvroom and another [1996-97] SCGLR 468, the Supreme Court stated unambiguously that the court is duty bound to excludes evidence which was inadmissible per se unless there is a law to the contrary or the parties by express or implied agreement agreed otherwise.

 

The information available to the Court through Exhibit "D", the extract from the National Register of Chiefs is the 4th Respondent was enstooled as the Piakohene under the Stool name Barima Yaw Otopah Gyansere on 27th November, 2006. The National House of Chiefs gave approval and gazetted him on 23rd March, 2008. The petition filed at the Judicial Committee which is the subject matter of the contempt was filed by the Applicants on 24th April, 2008. For the avoidance of doubt we shall produce the reliefs sought by the Petitioners therein against the Respondent therein as follows:

"(a) A declaration that the stool in possession of the petitioners is the original Gyansare Stool.

(b) A declaration that Bana Gyansare 1V of the respondents claim to inherit Nana Anfo Gyansare

(c) That the Palaces at Dasaase, Akwamufie, Gorge Lands and submerged land for which compensation were paid are all stool properties and same be handed over to the petitioners.

(d) An order to restrain respondents, their agents and or assigns from laying any claim to compensation or any stool property mentioned supra.

(e) A declaration to declare any installation by respondents as Gyansare null and void”.

 

The petition in which the Applicants herein were seeking the reliefs above was filed on 24th April, 2008, barely a month after the name of the 4th Respondent had been gazetted by the National House of Chiefs. In fact there was no proceedings pending against the Respondents at the time they were alleged to have acted contemptuously. The Appellants are not alleging that there was an order of the court which is either prohibitory or mandatory which the Respondents have acted contrary to it. The application for committal for contempt filed by the Applicants to punish the Respondents which has culminated in this appeal is in the nature of criminal contempt and not civil contempt. Criminal contempt constitutes an act or conduct that tends to bring the administration of justice or the authority of the law into disrepute or any act that seeks to interfere with or prejudice parties or their witnesses during litigation An act which undermines administration of the justice or brings the authority or administration of the law into disrespect includes disrupting the court proceedings while sitting, preventing the court from sitting, scandalising the court, threatening a judge over a matter before him, insulting a judge in respect of a matter pending before him or a judgement delivered by him or acting in a manner that would prejudice the outcome of a pending suit. This type of contempt is known as criminal contempt or indirect contempt. On the other hand, civil or direct contempt is an act by a person which as an affront to an order or decision delivered by a court. Such an order by the court shall be clear and unambiguous and the applicant should have willfully disobeyed it. The standard burden of proof in both civil and criminal contempt is proof beyond reasonable doubt. It is not in dispute that the appeal before this Court is in the nature of criminal contempt and should be treated differently from civil contempt. The Applicants must establish a prima facie case by proving any act of the Respondents which tends to bring the authority or administration of the law into disrepute or disrespect.

 

The trial High Court judge was persuaded by the depositions contained in paragraphs 6, 7,8 & 9 of the supporting affidavit and became convinced that the Applicants had established a prima facie case. Paragraphs 6,7,8 &9 are as follows:

 

"6. That this petition when it was filed at the Akwamu Traditional Council was answered by the 2nd and 5th Respondents.

7. That the issue as to whether the Respondents are true members of the Aduana. Amoakare Family and could use the stool name of Gyansare is still pending before the Traditional Council.

8. That per the correspondence between 6th and 7th Respondents the National House of Chiefs in 2009/2010 the 4th Respondent has been gazetted as the Piankohene of Akwamu with the stool name Barima Yaw Otopah Gyensare V when the issue as to whether he can use the stool name Gyensare was still pending.

9. That by their positions as Registrar and Ag. President respectively 6th and 7th Respondents ought to have known that with the matter still pending they ought not to have written to the Regional and National Houses of Chiefs confirming the status and title of the 4th Respondent."

 

The Applicants in their paragraphs 6,7,8 & 9 deposed that they sighted a communication between the 6th and 7th Respondents and the National House of Chiefs written in either 2009 or 2010 in which it was stated that the National House of Chiefs had gazetted the 4th Respondent as the Piankohene of Akwamu with the stool name Barima Yaw Otopah Gyensare. The Respondent only presumed that they sighted the letter in either 2009 or 2010 when the petition was pending and the Applicants were therefore in contempt of the proceedings. Indeed, when was the alleged letter written by the 6th and 7th Respondents? The Applicants could not even tell the time the alleged letter was written by the 6th and 7th Respondents and rather gave a period of two years, that is between 2009 and 2010. The Applicants could not tell the date the letter was written and could not attach a copy to their application for contempt and this would have attracted the attention of the trial High Court judge     to dismiss same at the close of the Applicants' case. The unfortunate thing is that the Applicants who knew that the depositions contained in their supporting affidavit concerning the alleged letter written in either 2009 or 2010 were false deliberately did not exhibit it. The trial High Court judge also did not do diligent work by not taking into consideration exhibit "D" which states the date on which the 4th Respondent was gazetted. The trial High Court judge did not avert his mind to the legal position of entries made in the National Register of Chiefs and should have preferred exhibit "D" which is an entry made from the National Register of Chiefs to the content of the alleged letter which was not brought to his notice and was only mentioned in the Applicants' supporting affidavit. Section 59 (8) of the Chieftaincy Act, 2008 ( Act 759) provides that the contents of the Register of National Register of Chiefs is prima facie evidence of the existence of facts or particulars stated in the register. Section 59(8) & (9) of Act 759 stated thus:

The contents of the Registers are prima facie evidence of the existence of facts or particulars stated in the

Register. In legal proceedings, the contents of the Register or a part of it may be proved by a copy duly certified personally by the Registrar of the National House or a public officer authorized by the Registrar in writing, to be a true copy of the contents or of that part”.

 

Exhibit ‘D’ bears the signature of the Registrar of the National House of Chiefs and the Applicants did not in any way seek to discredit it. The contents of exhibit ‘D’ is therefore unimpeachable.

 

We hold that the evidence in the extract from the National Register of Chiefs has not been contradicted by the Applicants and the 4th Respondent was enstooled as the Piakohene of Akwamu under the stool name Nana Kwasi Gyansare on 27th November, 2006 and the enstoolment was approved by the National House of Chiefs on 23rd March, 2008.

 

The standard burden of proof in contempt case is proof beyond reasonable doubt as contempt of any kind is a quasi-criminal offence. Therefore an applicant in contempt proceedings is mandatorily required to establish a prima facie case before the case for the respondent may be considered. In the case of In Re Effiduase Stool Affairs (No. 2); Republic v Numapau, President of the National House of Chiefs and Others; Ex Parte Ameyaw 11 (No.2) [1998-99] SCGLR 639 at page 641 holding 2 of the headnote, the Supreme Court held thus:

"Since contempt of court was quasi criminal and the punishment for it might include a fine or imprisonment, the standard of proof required was proof beyond reasonable doubt. An applicant therefore must, therefore, first make out a prima facie case of contempt before the court could consider the defenses put upon by the respondents."

 

The Applicants failed to establish a prima facie case and the trial High Court Judge should have acquitted and discharged the Respondents without considering their defences.

 

The appeal succeeds and we hereby set aside the judgement of the trial High Court, Koforidua delivered on 2nd June, 2014. Even though the 7th Respondent did not appeal against his conviction and sentence, we cannot gloss over injustice and hereby set aside his conviction and sentence. All the Respondents should not have been called upon to open their defence as evidence available reveals that the Applicants failed to establish a prima facie case and the defences put up by the Respondents should not have been considered. We order that all the fines paid by the 2nd, 4th, 5th and 7th Respondents pursuant to their conviction by the trial High Court shall be refunded to them.

 

(SGD.) DENNIS ADJEI

JUSTICE OF APPEAL

 

(SGD.)

SOWAH,J.A                          I agree                         CECILIA SOWAH

                                                                                  JUSTICE OFAPPEAL

 

(SGD.)

MENSAH,JA.                        I also agree                 L.L. MENSAH

                                                                                  JUSTICE OF APPEAL