• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  CAPE COAST - A.D 2017
  

THE REPUBLIC

vs.

BEN MUSA BINEY AND 3 OTHERS - (RESPONDENTS/APELLANTS) EX PARTE; NANA OKOFO KOFI AMO VI (APPLICANT/RESPONDENT)

JUDGMENT

---

 

 

In the circumstances, the Respondents viewed the present contempt proceedings initiated by the Applicant/Respondent herein as actuated by bad faith and borne out of frustration since it was their family which met and elected a new mankrado flowing from the initiatives of the Nkosuohemaa settlement panel.

 

On 19/7/2011 the applicant filed a supplementary Affidavit as set out hereunder:

 

I NANA KOFI AMO VI, Mankrado of Enyan Obontser make oath and say that:

1) I am the deponent and applicant herein.

2) I have been served with the affidavit of respondents in opposition to my application for attachment

3) I take issues with respondents particularly paragraph 3-7 1st and 3rd respondents all the depositions of 2nd respondent and paragraphs 3 to 6 0f 4th respondent

4) I also vehemently deny paragraph 4, of 1st respondents affidavit in opposition, paragraph 4-16 of 2nd respondent’s affidavit in opposition and paragraph 6 of 3rd respondents affidavit.

5) In respect of 4th respondent though he is not a member of applicant 1st, 2nd and 3rd respondents family he is the customary son of the other respondents and actually led the other respondents to the palace of Nana Sekyi the chief of Obontser and also acted as spokesman of the other respondents.

6) In respect of the purported settlement though there was an attempt at settlement in which lawyer Ebo Dawson was hired by respondents to broker a settlement, no permission was sought by anybody from the Judicial Committee to settle the matter, so even if a settlement had been reached, which is denied, it would not have been valid

7) In this respect Lawyer J. A. Dawson a.k.a. Ebo Dawson cannot even represent one party in the case and my lawyer shall raise it preliminarily.

 

On 23/4/2012 the Applicant filed a “2nd supplementary affidavit” [see page 44 of the ROA]. It is not clear whether this Affidavit was pursuant to leave sought and granted by the Court, but its essence was to establish that, contrary to the position taken by the Respondents, the Enyan Denkyira Traditional Council having issued out Hearing Notice to parties to appear before it for consideration of the report of the Obontser Nkosuohemaa settlement Committee, the suit before that Council remained pending and, accordingly, no final settlement of the dispute had been achieved.

 

The foregoing is the backdrop against which the Learned High Court Judge, Cape Coast, found the 1st, 2nd and 3rd Respondents/Appellants herein liable and, consequently convicted them for contempt of Court.

 

In convicting the Respondents the Court stated, per the Court notes of 28/5/2013 on page 81 of the ROA as follows:

 

“ The 1st, 2nd and 3rd respondents are therefore found guilty of Contempt. Their conduct in fact extends to a disrespect and disregard to the authority dignity of the High Court, which had convicted them of the same offence barely 3 years earlier”.

 

The full text of the Courts judgment can be found from pages 83 to 92 of the ROA

 

In arguing his case, Counsel for the Respondents/Appellants argued together the ground to the effect that the judgment could not be supported having regard to the affidavit evidence adduced at the trial and the other grounds that the applicant failed to prove his case against the Respondent beyond reasonable doubt as well as and the further ground that the learned trial judge misdirected himself by holding that there was no binding settlement which could be relied upon to establish that there was no pending suit before the Traditional Council.

Counsel then argued the issue of the sentence imposed separately.

 

The short submission of Counsel for the Respondents/Appellants is that on the affidavit evidence before the Court the Applicant/Respondent herein failed to prove the charge of contempt he filed against the Respondents/Appellants herein by establishing the standard of prove required and hence making a case against the Respondents/Appellants beyond reasonable doubt in accordance with the law. Counsel maintained that the bone of contention was the issue of the alleged election and installation of the 3rd Respondent/Appellant herein as a “rival” mankrado of Enyan Obontser. In this connection it was the contention of Counsel for the Appellants that the Applicant/Respondent herein had failed to conclusively establish that the Respondents/Appellants had wilfully disobeyed any court order or wilfully done anything that tended to interfere with the administration of justice. Counsel argued that the Respondents/Appellants acted in concert with the family in furtherance of the initiatives of a settlement panel agreed to by both the Applicant and the Respondents as well as their family. Counsel submitted further that the action of the Nkosuohemaa’s settlement panel fell in line with the provisions of the Alternative Dispute Resolution Act, 2010 (Act 798) and was in the nature of a customary arbitration, the outcome of which was binding on the parties. Counsel referred to sections 105 and 109 of Act 798 in support of his submissions. Counsel also maintained that by virtue of section 26 of the Evidence Act, 1975 the applicant was per his conduct bound by the outcome of the settlement to which he had consented.

 

The question that springs to mind is whether or not the applicant had made out a case of contempt of Court against the Respondents on the basis of the evidence on record. Additionally, and equally importantly, if the Applicant had established such case, had he satisfied that level or standard of proof which should enable the Court not only to find the Respondents guilty or liable but to consider them deserving of criminal sanctions as occasioned by the very nature of contempt of Court, which is designated as a quasi-criminal proceedings?

 

The burden of proof, naturally, rests on the Applicant. And the standard required, as every student of criminal law must know, is proof beyond reasonable doubt. A combatant proceeding to the contempt Court must, consequently, come suitably armored and with a just cause.

 

Brobbey JSC in Republic vrs. Osei Bonsu II, Mamponghene & others; Ex-parte: Amadie & Another (2007-2008) SCGLR 566 at page 579 of the Report refers to the case of In Re: Effiduase stool Affairs (No.2); Republic vrs; Numapau, President of the National House of Chiefs; Ex-parte: Ameyaw II (No.2) (1998-99) SCGLR 639 as the classical authority on this point. He also quotes a passage in Comet products UK Ltd. Vrs: Hawkes Plastics Ltd. (1971) 1 All ER 1141 at pages 1143-1144, CA which bears repeating for its illuminating insight into the nature and character of civil contempt. It states as follows;

 

“Although this is a civil contempt, it partakes of the nature of a criminal charge. The Defendant is liable to be punished for it. He may be sent to prison, the rules as to criminal charges have always been applied to such proceedings. It must be proved with the same degree of satisfaction as in a criminal charge.”

 

What constitutes contempt of Court has been duly and sufficiently expounded upon in the decisions of the various Superior Courts in Ghana and elsewhere, as well as by numerous learned text writers in a manner as not to warrant any attempt at a further indepth enquiry into the matter in this ruling.

 

A few authorities may however, be relevant for our purpose and provide guidance in determining the issues connected with the present application. In Re; Effiduase Stool Affairs (No.2), Republic Vrs; Numapau, President of the National House of Chiefs and others, Ex- parte; Ameyaw II (No.2) (1998-99) SCGLR 639, the Supreme Court of Ghana outlined in a very detailed manner what constitutes contempt of court under Ghana law and the standard of proof required to establish liability for contempt.

 

The court declared that contempt of court was constituted by any act or conduct that tended 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.

 

The Court further explained that contempt of Court might be classified as direct where it is seen either as civil or criminal contempt. Direct contempts were those committed in the immediate view and presence of the Court. Indirect or constructive contempts were those arising from events or conduct not occurring near or in the presence of the Court, but which tended to obstruct or defeat the administration of justice. These include the failure or refusal of a party to obey a lawful order, injunction or decree of the Court which imposed upon the party a duty to do a specific act or refrain from doing an act.

 

In distinguishing civil from criminal contempt the Supreme Court defined civil contempt as quasi- criminal consisting in the 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 contempt arose from acts done in respect of the Court or its process, or conduct which tended to obstruct the administration of justice or which brought the Court into disrespect.

 

On the standard of proof, the Supreme Court stated clearly that 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. Therefore it was incumbent upon an applicant to first make out a prima facie case of contempt before the Court could consider the defences put upon by the Respondents.

 

In Republic vrs High Court, Accra, Ex-parte Laryea Mensah (1998-1999) SCGLR 360, the Supreme Court stated that the ingredients for the offence of contempt of Court were the willful breach of Court order by reason of willfully disobeying an order of the Court requiring the party to do any act other than payment of money, or to obtain from doing an act. The Court emphasized that the order sought to be enforced should be unambiguous and must be clearly understood by the parties concerned, the reason for this being that the Court will only punish as contempt, a willful breach of a clear Court order requiring obedience to its performance. In this connection, the supreme Court, per Bamford- Addo JSC, noted that: “it is final ‘order of the Court, that is the enforceable order which should be considered in deciding whether contempt had been committed or not”.

 

Citing the case of Agbleta vrs. The Republic (1977) 1 GLR 445, C.A., as authority, the Supreme Court declared that; “disobedience which is found not to be willful cannot be punished”.

 

Republic vrs. Sito, Ex-parte: Fordjour (2001-2002) SCGLR 322 is also a Supreme Court decision. In this case, the Court set out three essential elements for the offence of Contempt of Court; namely:

 

            i) That there must be a judgment or order requiring the Contemnor to do or abstain from doing something;

            ii) It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing; and

iii) It must be shown that he failed to comply with the terms of the judgment or order and that his disobedience is willful.

 

It is important to stress that he second essential of contempt stated in the Ex-parte Fordjour case cited above; namely that the contemnor must know what precisely he is expected to do or abstain from doing means and must be deemed to import that, for contempt to lie in relation to an alleged infringement or breach of Court order or judgment, that judgment or order itself must be reasonably precise and demonstrate clarity so as to make it capable of enforcement, otherwise, it will be idle to talk of it having been infringed.

 

The contempt the applicant complained about was clearly ex facie curae and not in facie curia.

 

It must be emphasized that, as a general principle, contempt does not assume the character of an absolute liability. In the case before the Court mens rea had to be established in order to convict the Respondents. See; HEATON TRANSPORT LTD VRS. T.G.W.U. [1972] 3 A 11 E.R. 151; Agbleta vrs.

The Republic [1979] 1 GLR 445.

 

Having exhaustively and dispassionately considered the record it is my respectful view that in finding the Respondents liable and convicting them for contempt the trial Judge obviously suffered himself to be influenced by extraneous issues instead of strictly confining himself to the evidence proffered by the Applicant.

 

The Learned trial Judge permitted himself to be misled by the evidence of the prior conviction for contempt.

 

Thus at page 84 of the record the Judge stated as follows;

 

“ The present application has been made to the Court to commit the Respondents for contempt upon the grounds that they have inspite of the said conviction continued to hold onto their conduct for which they had been committed for contempt’.

 

Paragraph 16 of the Applicant’s Affidavit set out two basic grounds for the contempt alleged, namely;

 

“a) Willful acts intended to interfere with the administration of justice.

Willful disobedience of the order of the High Court."

 

As pointed out earlier on in this judgment, the applicant failed or otherwise neglected or omitted to attach to his application copy of the petition or writ of summons allegedly pending before the Enyan Denkyira Traditional Council. The applicant only sought to prove the pendency of the suit by way of exhibiting a previous motion for committal for contempt and the ruling of Gyamera-Tawiah, J convicting certain persons including some of the Respondents/Appellants herein for contempt.

It is my respectful view that the previous process for contempt and the Ruling of Gyamera-Tawiah, J cannot properly be used as evidence to bolster the application filed on 1/2/2011.

 

Since the applicant appeared to rely on a supposed pending suit before the Enyan Denkyira Traditional Council, it was absolutely necessary that the Applicant exhibited that “Court” process. This would have obviated speculation or guessing. A copy of the petition or writ would clearly have established the nature of the reliefs sought in the alleged pending action, the parties in that suit and the factual basis for that action by way of the statement of claim or any pleadings.

 

Without that vital document it cannot fairly be said that the applicant satisfied the burden of proof in respect of the pendency of the alleged suit and whether the allegations made in the applicants affidavit in support of the 1/2/2011 contempt application had a real bearing on the pending suit as well as the extent to which the alleged conduct of the Respondents did interfere or tended clearly to interfere with the determination of the alleged pending suit and hence obstructed the course of justice See: Majolagbe vrs. Larbi and others [1959] GLR 191 & 192.

 

The trial judge suggested that the respondents had made admissions in respect of the pendency of the suit and accordingly the Applicant did not require further proof. The evidence clearly does not support the Court’s conclusion in this regard. To accept the existence of a suit does not establish the exact nature or character of the action and the precise reliefs being sought in the suit to satisfy the high standard or burden of proof beyond reasonable doubt required in a case of contempt of court. No where did the Respondents admit liability for contempt which could have obviated the need for the Applicant to prove the contempt charge against the Respondents.

 

The Applicant’s second ground for his application for contempt was the Respondents alleged disobedience of the order of the High Court –Cape Coast.

 

Once again, the Applicant failed or neglected to exhibit the alleged order of the Cape Coast High Court which had supposedly been disobeyed by the Respondents. What the Applicant had exhibited was the ruling of Gyamera-Tawiah, J convicting certain named respondents for contempt.

 

I have examined that Ruling carefully and I find no order contained therein which could even remotely justify or link with the Applicant’s second ground or complaint of contempt against the Respondents. Indeed, Gyemera-Tawiah, J made no order except the one which convicted the respondents who appeared before him for contempt.

 

To that extent, the Learned trial Judge misdirected himself in convicting the Respondents/Appellants herein for contempt on the view he had taken that the Respondents conduct “in fact extends to a disrespect and disregard to the authority and dignity of the High Court, which had convicted them of the same offence barely 3 years earlier” (See: Page 81 of the record)

 

The similitude of the Learned judge’s approach is akin to a judge accepting the past evidence and judgment of a criminal proceeding as a sufficient basis for convicting an accused in a subsequent criminal action against him.

 

A careful examination of the record establishes the irresistible impression that the conviction of the Respondents/Appellants herein was largely based on the previous contempt proceedings and the ruling of Gymera-Tawiah, J.

 

The previous proceedings and the past ruling of Gyamera-Tawiah, J could not properly be used to sustain a case of contempt against the Respondents/Appellants herein. Indeed, the findings of fact contained in Gyamera-Tawiah, J’s Ruling did not constitute any order of the Court requiring obedience to its performance for which the Respondents/Appellants herein could be found guilty of any wilful breach thereof. See: Republic V. High Court, Accra ; Ex-parte: Laryea Mensah (1998-99) SCGLR 360.

 

It is my opinion that this alone should be sufficient reason to undermine the validity of Dapaa, J’s conviction of the Respondents/Appellants herein and, consequently, to justify the setting aside of the said conviction.

 

Having carefully and exhaustively considered the record, I am firmly of the opinion, and I do so hold, that on the affidavit evidence proffered by the Applicant, he signally failed to cross the barrier of proof in raising a prima facile case of contempt based on the grounds set up by the Applicant in his Affidavit in support which should have enjoined the Court to even begin to consider the defences put upon by the Respondents. That should have put paid to the Applicant’s case of contempt made against the Respondents.

 

But granted that a case of contempt had even been made out against the Respondents, contempt, being in the nature of a criminal action or prosecution, does the evidence on record as provided by the Respondents, in all the circumstances of the case, appear reasonably probable, even if the defence put up by them may not be considered as being entirely true? If not true, entirely, does the defence raise doubt about their guilt on the basis of the evidence provided by the Applicant, and set against the explanation given by the Respondents?

 

In this regard, it is quite obvious, as shown above, that the Applicant woefully failed to establish that there was a High Court order which the Respondents wilfully disobeyed. Indeed, there was no High Court order at all, contrary to what the Applicant sought to establish by his second ground of contempt which is contained in paragraph 16 of his Affidavit in support.

 

It is worth pointing out that in his previous application for contempt leading to Gyamera-Tawiah, J,s Ruling, the Applicant had charged, in his second ground, that the Respondents then had breached or disobeyed the order of the District Court, Ajumako dated 13th September 2006 (See page 6 of the ROA) whereas in the instant application the Respondents were rather accused of disobeying a High Court order which was not particularized.

 

What, however, appears to have engaged the High Court’s attention to a large measure was whether or not there was a pending suit before the Enyan Denkyira Traditional Council for which reason the Respondents’ conduct in allegedly appointing or installing the 3rd Respondent as a new mankrado tended to constitute an obstruction to the fair administration of justice in relation to the Applicant’s first ground of contempt.

 

It was an established fact that the 3rd Respondent had been appointed as a mankrado. The trial Court found that contrary to the contention by the Respondents that there was no pending suit before the Enyan Denkyira Traditional Council following the withdrawal of the case for out of Court amicable settlement, the Nkosuohemaa panel’s efforts had not conclusively determined the case since the Traditional Council, at the time of the 3rd Respondents appointment as mankrado, was yet to adopt the report of the settlement panel. The Learned trial High Court Judge took the strict and narrow interpretation that the Report was still before the Traditional Council for consideration. Therefore, the case was still pending.

 

The defence put up by the Respondents was that the Traditional Council had permitted the Nkosuohemaa to withdraw the pending suit for amicable out of Court settlement upon the clear consent of the parties. They said that, at the entreaty of the settlement party, certain steps had been taken. These included the stepping down of both the Applicant and 3rd Respondent as mankrado to enable the stool family to exercise their prerogative to appoint a new mankrado. That the Applicant had accepted his nomination to be appointed by the family as Ebusuapanyin. That a new Head of family was duly appointed and the 3rd Respondent was subsequently appointed by the family as the new mankrado. According to the Respondents it was at this point that the Applicant sought to withdraw from the settlement process and then proceeded to institute the contempt action.

 

The Respondents maintained that the appointment of the 3rd Respondent was the act of the family as a whole and that their involvement was only by virtue of their being family members.

 

Counsel for the Respondent had argued that to the extent that it was the Traditional Council which had itself agreed to the withdrawal of the case for out of Court settlement at the request of the Nkosuohemaa and upon the tacit consent of the parties, the initiatives taken by the settlement panel  to try to ensure and achieve peace in the family could not reasonably be held to undermine the Traditional Council since it had itself ceded its authority to the Nkosuohemaa’s settlement panel. To that extent the conduct of the Respondent could not reasonably be said to constitute “willful acts intended to interfere with the administration of justice”.

 

Counsel for the Respondents cited the Alternative Dispute Resolution Act, 2010 (Act 798) as validating the conduct and endeavors of the settlement panel as well as the decision of the Traditional Council to allow the out of Court settlement.

 

It is my considered view that the belated purported withdrawal of consent by the Applicant for the settlement process through Exhibit G did not and could not have invalidated actions taken by the family through the Nkosuohemaa settlement panel’s encouragement or entreaties. That endeavor included the family’s alleged re-appointment of the 3rd Respondent as the new mankrado after he and the Applicant had earlier on been prevailed upon to step down voluntarily in furtherance of the settlement process.

 

In the circumstances, I am satisfied that the explanation or defence put up by the Respondents appear not only reasonably probable but it raises very serious doubt about their guilt in respect of the charge of wilfully intending to undermine the course of justice. To hold the Respondents personally liable and culpable for the alleged action of the family to which both the applicant and the Respondents belong and to thereby criminally punish them by way of contempt would tend to rather set justice on its head, in the circumstances of the case under review. A court minded to be fair and to do justice cannot shut its eyes to the peculiar circumstances raised by the Respondents and proceed to convict them for contempt on the clearly shabby evidence proffered by the Applicant.

 

My finding that there was no High Court order in existence which was or could have been breached or wilfully disobeyed coupled with the reasonably probable defence or explanation put up by the Respondents settles all issues in favour of the Respondents/Appellants herein.

 

 

In the peculiar circumstances of this case, I cannot help but conclude this judgment on the note of caution appropriately sounded by the Supreme Court of Ghana and contained in their dictum expressed in the case of Opoku V. Libherr Frans SAS & Anor [2012] SCGLR 159 at 160.

 

The Supreme Court delivered itself through the redoubtable Atuguba, JSC in classic style as follows:

 

“The Courts should be anxious to contain the power to punish for contempt of Court, which has been castigated as wide and arbitrary, within the narrowest possible confines in order to safeguard the fundamental constitutional right of the individual to liberty.”

 

In the event, I allow the appeal, set aside the finding of contempt made against the Respondents/Appellants herein by the trial High Court and hereby proceed to acquit and discharge the Respondents/Appellants.

 

SGD

…………………..

SAEED KWAKU GYAN

(JUSTICE OF THE COURT OF APPEAL)

 

SGD

I AGREE                                                                          …………………

HONYENUGA

(JUSTICE OF THE COURT OF APPEAL)

 

SGD

I ALSO AGREE                                                             …………………

SUURBAREAH

(JUSTICE OF THE COURT OF APPEAL)