This appeal emanates from an appeal against the Ruling of the High Court dated 16^th April, 2015, dismissing the application for the committal of the Respondent/Respondent for contempt of court.

In this appeal, the Applicants will be described as the Appellants and the Respondent as Respondent.

The facts culminating in this appeal are that on 20^thOctober, 2014, the Appellant filed at the High Court, Kumasi, a Motion on Notice for an order of Interlocutory Injunction pending appeal. Preceding this, on 17^th October, 2014, the High Court presided over by P. K. Richardson had dismissed an application by the Appellants’ for certiorari and prohibition as well as an application for interlocutory injunction restraining the Respondents in that suit from among others continuing with the customary process leading to the installation or enstoolment of Dr. Yaw Sarfo. Following the dismissal of both applications by the High Court (Human Rights Division) Kumasi, the way was clear for the installation ceremony of a new Omanhene for Kumawu.

On 30^th October, 2014, the Respondent, together with the Gyasehene of the Kumawu Traditional Area, the Queen mother of Kumawu Traditional Area and in the presence of an Okyeame of the Otumfour, the Asantehene and before the Oman of Kumawu, installed/enstooled Dr. Yaw Sarfo as the Omanhene of the Kumawu Traditional Area under the stool name of Barima Sarfo Tweneboah Kodua. It was after this event that the Respondent herein was served with a Motion on Notice for an order of committal for contempt.

According to the Respondent he was not served with the Motion for Interlocutory Injunction pending appeal which was filed by the Appellants. The Appellants dissatisfied with the Ruling of the High Court filed an appeal with the following grounds:

The ruling is against the weight of the evidence on the record.

The High Court, Commercial Division, Kumasi lacked jurisdiction to deliver its ruling in that the High Court 7, Kumasi, with Mr. Justice Azumah presiding, had adjourned the same case for ruling on 10^th February, 2015, which case had been pending before him since 24^th November, 2014.

The learned Justice of the Commercial Division of the High Court, Kumasi, erred in law in holding that the Respondent/Respondent’s participation in the ceremony intended to install Dr. Yaw Sarfo as Omanhene of Kumawu did not interfere with the due administration of justice and pending litigation.

Counsel for the Appellant argued that the application for contempt was “poached from Mr. Justice Azumah to land in the bosom of Justice Angelina Mensah (Mrs). “. He conceded that the Chief Justice has competence to transfer cases from one judge to another but submitted that that person is subject to the Courts Act and Articles 23, 144(11) and 296 of the 1992 Constitution of Ghana.

Counsel argued that the court forbids cases that are adjourned for judgment or ruling to be transferred from a presiding to another judge or court.

Article 23 states that:

“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal”.

Article 296 states that:

“Where in this constitution or in any other law discretionary power is vested in any person or authority –

a. That discretionary power shall be deemed to imply a duty to be fair and candid;

b. The exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and

c. Where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instruments or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power”.

Counsel for the Appellants further argued that Her Ladyship the Chief Justice ought to have given a “verifying reason” for the transfer.

Counsel for the Respondent contended this point by referring the court to authorities which reinforce the principle that the power of the Chief Justice to transfer cases and the taking away of the jurisdiction of any judge to hear and determine any case or matter pending before him or her be it part-heard case or a fresh matter, is reserved exclusively in the Chief Justice under Section 104 of the Court Act 1993 (Act 459).

He cited the case of Soro vrs Frans [2005-2006] SCGLR 1003 where the Supreme Court unanimously held that:

“The administrative powers of the Chief Justice under Article 125(4) of the 1992 constitution were known to include the powers of transfer of judges and magistrates and cases under Section 104 of the Courts /act, 1993 (Act 459). The said power of transfer being a prerogative meant for the smooth and efficient administration of justice could after the exercise of a Courts’ jurisdiction.”

In effect, the sole underlying reason for the exercise of this discretion by Her Ladyship the Chief Justice in her power of transfer is for effective administration of justice, it is therefore misleading for the Appellants to suggest that a “verifying reason” ought to have been given by the Chief Justice in the exercise of her power of transfer of cases.

In the case of Republic vrs High Court Judge (Fast Track Division) Accra; Ex-parte Quaye and another (Yovonoo and others Interested Parties) [2005-2006] SCGLR 660, the Supreme Court unanimously held that:

“the administrative powers of the Chief Justice under Article 125(4) of the 1992 Constitution were known to include the powers of transfer of judges and magistrates and cases under Section 104 of the Courts Act, 1993 (Act 459). The said power of transfer being a prerogative meant for the smooth and efficient administration of justice could affect the exercise of the Court’s jurisdiction”.

Section 104 of the Courts Act 1993 (Act 459 as amended) reads as follows:

1. “Subject to the Constitution, the Chief Justice may by order signed by the Chief Justice transfer a case by a Judge, or Magistrate or Tribunal to any other Judge or Magistrate and from one court to any other competent court at any time or stage in the course of proceedings and either with or without an application from any of the parties to the proceedings.

2. The order may be general or special and shall state the nature and extent of the transfer and in a case of urgency, the power of transfer may be exercised by a telegraphic, telephonic or electronic communication from the Chief Justice.

3. The transfer of a case made by telegraph, telephone or electronic communication and not confirm immediately by order signed and sealed in a manner specified by the Chief Justice or any other person authorised in that behalf by the Chief Justice is not valid”.

It seems to me that Respondent counsel’s submission that the only interpretation of subsection 1 of Section 104 unequivocally demonstrates that the Chief Justice may order the transfer of a case either with or without application from the parties is absolutely right. It is therefore erroneous for the Appellants to suggest that the Chief Justice could only transfer a case upon “a prompting from another person”.

From the record of appeal at pages 22 and 23, the Transfer Order was brought to the attention of the parties to the suit on 20^th March, 2015. The transfer Order itself is found on page 21A of the record. The Registrar of the High Court was ordered by the trial judge to serve copies of the Transfer Order. I reproduce the order of the court on page 23 of the record for ease of reference.

By Court:

“Registrar is to serve both counsel with copies of the transfer order in respect of this case. Both counsel have filed their respective submission in respect of the contempt application adjourned to 16^th April, 2015 at 2.00 p.m for ruling.

Indeed, the above proceedings are clearly indicative of the court’s order ordering the Transfer Order to be served on the counsel of both parties.

As counsel for the Respondent rightly surmised, it is incorrect to say that the constitution forbids the transfer by the Chief Justice in exercising the powers conferred to her in Section 104 of the Courts Act merely because it had been adjourned for ruling or judgment. Section 104 (1) in clear terms, state that the Chief Justice may transfer any case “at any time or stage in the course of the proceeding”.

Thus this renders Appellants’ argument of no moment. The referral by Appellants counsel to Article 144(11) of the 1992 Constitution needs to be mentioned here. For ease of reference, I reproduce Article 144(11):

“Notwithstanding the expiration of the period of his appointment or the revocation of his appointment under clause (9) of this article, a person appointed under clause (9) of this article may thereafter continue to act for a period not exceeding six months, to enable him to deliver judgment or do any other thing in relation to proceedings that were commenced before him previous to the expiration or revocation”.

This Article refers to situations where a special class of justices of the High Court are appointed by the President to act instead of the sitting justices whose courts have been rendered vacant due to death, illness or other reasons that have made it necessary for acting judges to be appointed upon the recommendation to the President by the Chief Justice.

Article 144(11) goes on to state that notwithstanding the expiration, or revocation of the period of appointment, such acting judges may continue to act for a period not exceeding six months to enable him to deliver judgments or do any other thing in relation to proceedings that were commenced before him prior to the expiration or revocation.

I cannot agree more with counsel for the Respondent that the Article 144(11) of the Constitution has no bearing whatsoever on the powers of the Chief Justice to transfer cases from one court to the other.

From the foregoing the Appellant has not advanced any compelling reasons for us to uphold his submissions on this ground. Ground 2 is therefore dismissed as unmeritorious.

Ground I“The ruling is against the weight of evidence on record”. Where an Appellant is of the view that the judgment is against the weight of evidence a burden is imposed on him to substantiate the allegation.

In the case of Tonado Enterprise &ors vrs Chou Sen Lin [2007-2008] SCGLR 235, the court stated that:

“When a party in his ground of appeal states that the judgment is against the weight of evidence, he imposes upon himself the onus of satisfying the appellate court that the evidence led in the trial were not such as to warrant the findings made on it.”

In such a case it is incumbent upon this court to analyse the entire record of appeal, so as to satisfy itself that on the balance of probabilities the conclusions of the trial judge are reasonably supported by the evidence.

The learned trial judge delivered herself thus as part of the ruling on page 32 of the record as follows:

“I find from the processes filed that even though the Applicants claim that the motion for interlocutory injunction filed on 20^th October, 2014 was served on the Respondent herein, no affidavit of service was exhibited to demonstrate this fact. Neither did the applicants exhibit any evidence of service of the said motion on any other person(s) sought to be restrained. The bare assertion in the affidavit that that motion was duly served on the Respondent is not enough since this deposition has been denied by the Respondent and is capable of positive proof i.e. by an affidavit of service duly sworn by an affidavit. Alternatively, the applicants could have introduced secondary evidence, in the absence of an affidavit of service, to establish knowledge of the pending application on the part of the Respondent herein, for instance evidence of service or knowledge as regards the persons who acted together with the Respondent to install the New Chief would have been helpful. It is not the duty of this court to as it were embark on a voyage of discovery in search of evidence which a party ought to have brought to its notice. This would amount into descending into the arena of conflict which is unethical…”

The fact of the matter is that I have combed the entire record and I do not find any evidence supporting the Appellants’ assertion that the Respondent was served with the application, in the words of the Appellants’ counsel “just like majority of Kumawu elders who were served and therefore refrained from participating in the charade passing off as ceremony ….”.

Although counsel for Appellants stated that the evidence is available to prove to the hilt that the Respondent was served, again this is not apparent on the face of the entire record. We need to remind ourselves that this instant appeal seeks an order to commit the Respondent for contempt of court, a quasi-criminal act. Without doubt, this requires the burden of proof beyond reasonable doubt (see Section 13(1) of the Evidence Act 1975, NRCD 323) which provides that “13(1) In any Civil or Criminal action, the burden of persuasion as to the Commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.

See the cases of Republic vrs Achia II (Achiaman Mantse) Ex-parte Addo and Quartey-Papafio [2015-2016] 1 SCGLR 350, where Akamba JSC (Sitting as a single Justice of the Supreme Court) held:

“Dismissing the application for contempt of court for the following reasons: (1) the instant application seeks an order of this court to commit the defendant/Respondent for contempt of court. Without doubt, a contempt application is a quasi-criminal relief. Thus section 13(1) of the Evidence Act, 1975 (NRCD 323), provides that: “In any Civil or Criminal action, the burden of persuasion as to the Commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” The burden is on the applicants to establish or prove the allegations raised against the defendant/Respondent beyond reasonable doubt. In the present application, all the depositions of fact made by the applicants were denied by the Respondent. This therefore enjoins the applicants to lead further evidence or point to other evidence already deposed to that point to a conclusion in their favour beyond a reasonable doubt”.

In Republic vrs Court of Appeal, Ex-parte Sito I [2001-2002] SCGLR 319, the Supreme Court held that:

“(2) On the authorities, for a party to be guilty of contempt:

a. There should be a judgment or order requiring the contemnor to do or abstain from doing something;

b. It had to be shown that the contemnor knew what precisely he was expected to do or abstain from doing; and

c. It had to be shown that he had failed or refused to comply with the terms of the judgment or order and that the disobedience was wilful.”

“In the instant case, “even though the Appellant surrendered the black stool nearly ten years after the time stated in the order of the trial judicial committee, the Respondent took no steps to enforce the order. He commenced the contempt proceedings only after the order had been complied with, had become discharged and no longer operative. Moreover, since there was no order forbidding the enstoolment of the Appellant by the Kralongo house or his holding himself out as Omanhene and parading as chief of Banda and besides, the return of the black stool was not made a condition precedent to enstoolmnet, the enstoolment and public conduct of the Appellant could not be used to sustain a charge of contempt against him. Accordingly, the finding of contempt made against the Appellant by the Court of Appeal would be set aside and he would be acquitted and discharged.” Republic vrs High Court, Accra; Ex-parte Laryea Mensah [1998-99] SCGLR 360 and Collins vrs Wayne Iron Works, 76 US 24 ….” .

For the foregoing reasons and authorities cited, this ground therefore fails.

Ground C

The learned Justice of the Commercial Division of the High Court, Kumasi, erred in law in holding that the Respondent/Respondent’s participation in the ceremony intended to install Dr. Yaw Sarfo as Omanhene of Kumawu did not interfere with the due administration of justice and pending litigation.

In respect of this ground, one finds at page 7 of the record, the Application for Interlocutory Injunction pending appeal. On the face of that application, the order is seeking the injunction relief against specifically the following: 1. The Queen Mother of Kumawu, the 3^rd Respondent and 2. Dr. Yaw Sarfo, of the Government Hospital, Jachie Pramso from conducting or taking part in any ceremony intended to install the said Dr. Yaw Sarfo or any other person as Omanhene of the Kumawu Traditional Area…

On the face of the Exhibit, there is no pending application for Interlocutory Injunction against the Respondent herein. As the judge rightly held, the Respondent is not one of the persons sought to be restrained by the said application. In the face of the Respondent’s denial of any knowledge of the pending application prior to the installation of the New Kumawu Chief, the onus was on the Appellants to adduce evidence to establish this fact, this they woefully failed to do.

From the record, have the Appellants proved beyond reasonable doubt that the Respondent had actual or constructive notice of the pending motion? A close scrutiny of the record does not reveal any such evidence.

The learned trial judge’s conclusion that the Applicants have not established beyond doubt that the Respondent is in contempt of court by participating in the ceremony of 30^th October, 2014 is unassailable and should not be disturbed. This ground is therefore dismissed.

Before I conclude, one must mention counsel for the Appellant’s choice of the English Language, and his penchant for the use of abusive words.

Counsel for the Appellants is very much aware of the import and impact of his choice of words, but as an officer of the court and a fairly senior one at that he should refrain from uttering such words that tend to denigrate parties, his colleagues and by extension the administration of justice. Counsel, senior as he is should set a good example for the up and coming lawyers to follow.

In conclusion, the entire appeal is dismissed. Cost of GH¢5,000 awarded to Respondents against Appellants.

Margaret Welbourne (Mrs.)

[Justice of Appeal]

I agree                                                                K. N. Aduama Osei

[Justice of Appeal]

{Presiding}

I also agree                                                           Senyo Dzamefe

[Justice of Appeal]