In the case of the Republic v. High Court, Kumasi; Ex Parte Atumfuwa and Another (2000) SCGLR

72, at page 78, Hayfron-Benjamin, JSC affirmed the settled principle of law when he declared as follows:

“The principle, as clearly laid down in civil matters, is that the Plaintiff or applicant must lose where no evidence is led by either party; for, it is the Plaintiff or the applicant who is seeking relief from the Court or tribunal.”

This is obviously in accord with the provisions of the evidence Act, 1975 (NRCD 323). It is however trite that the burden on the prosecution in a criminal matter is so much higher and more onerous.

Thus Section 11 of the Evidence Act, 1975 provides as follows:

For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.

In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.

Section 13(1) of the Evidence Act emphases that: “In a 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 a reasonable doubt”

The matter before this Court is a case of contempt of Court. It is well settled that contempt of Court is in the nature of a quasi criminal action. To establish it in a Court of law one needs to scale the burden and standard of proof to a height beyond reasonable doubt.

Ultimately, the determination of this appeal must rest upon whether or not the Appellants herein did satisfy the burden of proof imposed on them by law, in all the circumstances of the case, to have reasonably weighed on the mind of the trial Court to find for them in respect of the matter or application which they had brought before the trial tribunal for determination.

In the end, the Learned trial judge, sitting at the Nkawkaw High Court, was obviously, not  adequately persuaded by the case put up by the Appellants herein and, accordingly, he had no difficulty in dismissing their action against the Respondents herein.

The Appellants, in the due exercise of their statutory rights, have appealed against the decision of the Nkawkaw High Court to this court.

The decision or Ruling of the High Court was handed down on the 23rd day of June, 2017. It was a short and almost terse ruling.

The appeal was launched by virtue of Notice of Appeal filed on 11/7/2017.  The Appellants’ complaint was against the dismissal of their application as well as the costs awarded against them.

The relief they seek at the Court of Appeal is for an order setting aside the ruling of the High Court, Nkawkaw, and the conviction of the Respondents herein for contempt of Court.

The grounds of appeal contained in the notice of appeal state thus:

“i) The Learned judge did not exercise his discretion judicially.

ii) The Learned Judge misdirected himself and thus erred in law.

iii) Other grounds will be added on receipt of the full record of proceedings.”

No further or additional grounds of appeal were, however, filed and the Appellants rested their case  on the two substantive original grounds filed on 11/7/2017, which their Learned Counsel chose, in    his written submission, filed on 14/3/2018, to argue together for the reason that “they are interrelated”.

It is worth setting out the basic facts undergirding this case at this point.

By a motion on notice filed at the Nkawkaw High Court on 9/1/2017 the Appellants herein sought an order of the said Court committing to prison the Respondents herein, together with “others presently unknown but will be known during the trial when evidence is given….” for contempt for having brought the “administration of justice into disrepute…..”

Accompanying and in support of the motion paper was a 16-paragraph Affidavit not sworn to by the Applicants, now Appellants herein, themselves but by Kwaku Baah, Esq. He described himself in the said Affidavit as “Counsel for the Applicants” who had their consent and authority to depose to the same in respect of matters within his personal knowledge, information and belief.

It is clear from the record of appeal (ROA) that the matter and circumstances which triggered off the application for contempt did not directly emanate from a case pending before the Nkawkaw High Court.

From the affidavit in support of the application for contempt, it was alleged that the Applicants (hereinafter also referred to as Appellants) were petitioners in a case entitled: Nana Frempomaa (Queenmother of Kotoso) and Opanin Thomas Ntim Frimpong of Kotoso vrs. Nana Ampoma Gyebi (Adehyeehene of Kotoso) and Mirekua “III” a.k.a. Mrs. Benedicta Kissi also Afua Nyantikyiwaa, with suit No. KTC/JC/4/2.

A Hearing Notice attached to the aforesaid affidavit seemed to imply that it was a case before the Judicial Committee of the Kwahu Traditional Council which was due for hearing on Thursday 13th November, 2014. There was however, no Affidavit of service accompanying the said Hearing Notice.

In the nature of this case, and having regard to the character of the Affidavit in support, it is useful to reproduce the whole affidavit for its full terms and effect:

“I Kwaku Baah Esq. of 10 MacCarthy Hill, Accra make oath and say as follows:

1. That I am the Deponent herein.

2. That I am Counsel for the Applicants and have their consent and authority to swear to this affidavit deposing to matters within my personal knowledge, information and belief.

3. That the Applicants are Petitioners in Suit Number KTC/JC/4/2 entitled Nana Ama Frempomaa (Queen mother of Kotoso) and Op. Thomas Ntim Frimpong of Kotoso Vrs. Nana Ampoma Gyebi (Adehyeehene of Kotoso) and Mireku “III” a.k.a. Mrs. Benedicta Kissi also Afua Nyantakyiwaa.

4. That attached hereto is a hearing notice marked Exhibit. APP1.

5. That the 3rd and 4th Respondents are the Respondents in the said suit and at all material times knew or ought to have known the pendency of the suit in issue.

6. That at the first and last hearing of the matter it was realized that the panel as appointed and constituted by the 1st respondent was not properly constituted as the majority of the members were not legally qualified.

7. That subsequently an application was brought before the High Court on an application for judicial review and the proceedings were quashed. I attach the ruling of the Court hereto marked exhibit APP2.

8. That I am informed and verily believe same to be true that the Applicants and others were invited to a meeting at the Palace of Mpraesohene on Monday 2nd January 2017.

9. That I am further informed and verily believe same to be true that on arrival the Applicants were

informed that the meeting could not come on so they should go to the Abetifihene Palace at Abetifi.

10. That I am further informed that when the applicants got to the Abetifihene’s Palace they were met with a closed gate and the people at the gate informed them that only persons with an invitation card would be admitted so they were turned away.

11. That it was in their absence that the events complained took place.

12. That the 1st and 2nd Respondents at the palace of the late Omanhene at Abene had presided over an arbitral tribunal which raised the same issue as in the suit before the judicial committee at the Traditional Council.

13. That it was the failure of the arbitration referred to above that the suit in issue herein was instituted before the Traditional council.

14. That at all material times the Respondents were aware that the matter in issue was pending before the Traditional Council and a similar one was before the High Court in suit No. E10/1/2012 and still pending.

15. That the act of the Respondents complained of herein are a blatant attempt to pervert the Course of justice and the administration thereof.

16. That the act of Respondents complained of have brought the course of justice into disrepute and ridicule.

Wherefore I swear to this affidavit in support of this application.”

It must be noted that the case referred to in paragraph 7 of the Affidavit in support of the motion for contempt which alluded to the High Court quashing certain proceedings of the Kwahu Traditional Council is entitled:

THE REPUBLIC

VS.

REGISTRAR MPRAESO      - RESPONDENT

EX PARTE: OPANYIN THOMAS NTIM FRIMPONG HOUSE NUMBER K. O. 40

KOTOSO, KWAHU    - APPLICANT

On 2/2/2017 the 1st, 2nd, 3rd and 4th Respondents to the Application for contempt filed their separate and individual Affidavits in opposition to the motion against them.

All the Respondents attacked the Affidavit in support of the contempt application for containing inadmissible hearsay matter. They denied the pendency before any tribunal of any chieftaincy matter or dispute involving the Kotoso stool. They maintained that the only chieftaincy case involving the Kotoso stool which they were aware of had been discontinued and struck out as far back as July 2009. They also maintained that following the outcome of a customary arbitration the 4th Respondent was recognised as the legitimate Queen mother of Kotoso in 2014. They contended that it was not the customary responsibility of the 1st Respondent to install or enstool a chief of Kotoso and, consequently, at no time ever had any such installation taken place before the 1st Respondent or performed by him. They insisted that on 2/1/2017 the 3rd and 4th Respondents were only introduced to the 1st Respondent and his Elders as chief and Queen mother respectively of Kotoso in accordance with custom and nothing else. Additionally, the 3rd and 4th Respondents stated that a previous application for contempt which the Applicants/Appellants herein instituted against them and the kingmakers of the Kotoso stool was in 2014 dismissed by the Nkawkaw High Court and they were mulcted in costs for bringing a frivolous application.

Pages 26 to 30 show various exhibits filed by the Respondents in support of their case.

In apparent response to the Affidavits in Opposition filed by the Respondents, Kwaku Baah Esq on 10/2/2017 filed a supplementary Affidavit. He annexed to his said affidavit a document purported to be minutes of Kwahu Traditional Council dated 29/9/2014. According to Mr. Kwaku Baah,  the  Kwahu Traditional Council at their alleged meeting of 29/9/2014 “announced a Judicial Committee into the Kotoso stool Affairs.”

Mr Kwaku Baah maintained that the contention that the 3rd and 4th Respondents had been introduced to the 1st Respondent had no support under Kwahu custom and tradition.

Significantly, and strangely enough, Lawyer Kwaku Baah did not take advantage of  his  supplementary Affidavit to exhibit a certified true copy of the petition which the Appellants alleged was pending before the Kwahu Traditional Council. Nor did he specifically deny or address the Respondents averment that the only petition touching on the Kotoso stool affairs which the Respondents knew about had been discontinued and had accordingly been struck out.

Quite obviously, the minutes attached to the said supplementary Affidavit and marked exhibit App3 do not reveal the parties to or the contents of the chieftaincy petition alluded to in the body of the Appellants’ motion for contempt filed on 9/1/2017.

On 23/2/2017 an Affidavit declared to be in “support of Application” sworn to by Dr Kwaku Adu- Opako, who identified himself as Apagyahene of Kwahu Aduana, was filed. He alleged that he was present some time in 2017 when the 3rd Respondent was sworn before the 1st Respondent as Kotosohene at a restricted function which was not open to the general public.

On 20/2/2017 Counsel for the Applicants/Appellants herein gave indication that he would “lead evidence and also cross-examine the Respondents on their affidavits (see page 46 of ROA). The record does not show that any such evidence was led or that the Respondents were cross-examined on their Affidavits.

In the event, the trial judge was left to determine the case on the basis of only the Affidavit evidence available to the Court.

Now, before touching on the substantive issues respecting this appeal, it is worth reiterating the basic legal principle that the appeal process is strictly regulated by statute and that there is no inherent right to appeal. See: FRIMPONG & ANOR V. NYARKO (1998-99) SCGLR 734; ZABRAMA V SEGBEDZI (1991) 2 GLR 221.

Rule 8(4-6) of the Court of Appeal Rules, 1997 (C.I.19) prescribe how grounds of appeal must be formulated and set out in a notice of appeal.

Rule 8(4) of C.I.19 is particularly relevant to the Appellants’ instant appeal.

In the case of F.K.A. CO. LTD AND ANOR V. NII AYIKAI AKRAMAH II AND 4 ORS (2016) 101

GMJ 186the Supreme Court of Ghana speaking forcefully through Akamba JSC delivered itself to the following effect;

“……..It is important to stress that the adjudication process thrives upon law which defines its scope of operation. It is trite to state for instance that nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate, relevant provision be it substantive law or procedural law. As courts if we fail to enforce compliance with the rule of court, we would by that lapse be enforcing the failure of the adjudicating process which we have sworn by our judicial oaths to uphold……

As Courts by law we administer justice according to law and equity which are strictly guided by laid down rules fashioned out over the centuries to guide our conduct. In AYIKAI V. OKAIDJA III (2011) SCGLR 205 this Court did stress the fact that non-compliance with the rules of Court have very fatal consequences…..”

In the aforesaid F.K.A. CO. LTD case (supra) the Supreme Court proceeded to strike out all but one of the seventeen (17) grounds of appeal filed in the case as falling foul of the Supreme Court Rules.

In the instant case, the Appellants’ grounds of appeal are problematic since they seem to me to fall  foul of the Court of Appeal rules. But whereas the first ground of appeal may be pardoned, the second ground is so clearly fatal that to ignore it will be to turn the law on its head and thereby to miscarry justice.

The said offending ground was couched in the manner as follows:

“ ii) The Learned Judge misdirected himself and thus erred in law”

As noted above, this ground of appeal is clearly inadmissible as it obviously sins against Rule 8(4) of C.I.19.

Rule 8(4) of C.I.19 specifically provides thus:

“ 4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”

Even with a beam in both eyes one can still see the fatal flaw in the Appellants’ second ground of appeal recorded above. It signally failed to particularize the alleged misdirection or error of law. See: DAHABIEH V. S. A. TURQUI AND BROTHERS (2002-2002) SCGLR 498.

One cannot stress enough the imperative need for legal Counsel to begin to pay more  serious  attention to the persistent reproaches and warnings by our Courts, including the Supreme Court itself, touching on due compliance with various rules of Court.

In the circumstances of this case, I have no option than to strike out the Appellants’ offending second ground of appeal. It is, accordingly, struck out in accordance with Rule 8(6) of C.I.19

The Appellants are therefore left with only one ground of appeal.

The sole ground of appeal is to the effect that the learned Judge did not exercise his discretion judicially. That is clearly a narrow, technical and restrictive ground of appeal.

The Appellants appear not to have found the need in this case to rely on the omnibus ground of appeal.

Nonetheless, by virtue of Rule 8(1) of C.I.19 which provides that an appeal to the court of Appeal shall be by way of rehearing, this Court still has the opportunity to examine and consider the entirety of the record to come to a just and proper determination of the case brought before it.

This is without prejudice to the basic principle of law that the burden of proof lies on the appellant to establish that the impugned judgment has no support in the evidence and the material on record.

In other words, the Appellant assumed the burden to show the exact error of law committed by the trial judge as well as pointing to relevant pieces of evidence on record, which if properly considered   or given the right weight, would have resulted in a different outcome favourable to him. In this connection, the lapses in the judgment must be satisfactorily demonstrated. See: OKUNOR V. OKAN (1977) IGLR 173; BOATENG V. BOATENG (1987-1988) 2 GLR 81; DJIN V.

MUSAH BAAKO (2007-2008) SCGLR 686.

In this particular case, the Appellants’ sole ground of appeal borders on an attack on the trial judge’s exercise of discretion.

Kingsley-Nyinah JA (as he then was) pointed out in the case of Akunor v. Okan (supra) that;

“……. A discretionary remedy …… must be fought for and justly won upon a clear preponderance of convincing facts satisfying the conscience of the trial court that it would not be inequitable to grant the claimant the reliefs he has sought……”

Viscount Simon LC on his part once declared as follows:

“The law as to the reversal by a Court of Appeal of an order made by a judge below in the exercise of his discretion is well established and any difficulty that arises is due to the application of well established principles in an individual case.

The Appellate Tribunal is not at liberty merely to substitute its own discretion for the discretion exercised by the Judge. In other words Appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way.

But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or sufficient weight has been given to relevant considerations, such as those urged before us by the appellant, then the reversal of the order on appeal may be justified;” See: CHARLES OSENTONE & CO. V. JOHNSTONE (1942) AC 130 HL

On his part, Kay LJ delivered himself in the case of JENKINS V. BUSHBY (1891) I CH 48 thus:

“In a question of discretion, authorities are not of much Value.No two cases are exactly alike and even if they were the Court cannot be bound by a previous decision to exercise its discretion in a particular  way because that would be in effect putting an end to the discretion”

See also: AGYEMAN V. GHANA RAILWAY AND PORTS AUTHORITY (1969) CC 60.  PER  AKUFFO ADDO, CJ

In KYENKYENHENE V. ADU (2003-2004) 1 SCGLR 142 the Supreme Court emphasised that in the exercise of his discretion the judge must demonstrate fairness and fidelity to clear principles; that the Judge must not misapprehend the evidence or fail to give critical consideration to relevant issues. In other words, the exercise of the Court’s discretion must not be arbitrary, capricious and uninformed. See also Article 296 (a) and (b) of the 1992 constitution of Ghana.

How does the Appellant’s appeal fare in the light of the forgoing discussion of the law?

I have examined the record in this case, considered the judgment which is the subject of the instant appeal and considered the matters discussed in the written submissions filed in this case on behalf of the parties herein.

Was the Learned Trial Judge right or justified in his determination of the case before him, in all the circumstances confronting the Court? If his decision or determination is not wholly justifiable, is it nonetheless supportable and/or sustainable on the evidence and material contained in the record of appeal?

Counsel for the Appellants, Kwaku Baah Esq, has in his 30-page written submission made a valiant effort to convince the understanding of this Court as to why we should set aside the decision of the Learned trial Judge and make findings leading to the conviction of the Respondents herein for contempt of Court.

I should state that the substance and force of the Appellants’ case is commendably captured and summarised in paragraph 3 of the very first page of Counsel’s Written submission filed on 14/03/2018. It states as follows:

“The Applicants/Applicants (sic) submit that with full knowledge of the pendency of a suit before the judicial committee of the Kwahu Traditional Council, the Respondents/Respondents in total disregard of the said suit proceeded to purportedly swear the 3rd Respondent as Kotosohene and recognised the 4th Respondent as Queen mother of Kotoso, acts which are contemptuous of Court and calculated to bring the due administration of justice into ridicule and obliquy”.

Now implicit in the above statement is the appreciation of the burden and standard of proof imposed on the Appellants in establishing the guilt of the Respondents in connection with the alleged offence  of contempt of Court.

In other words, the Appellants concede that they had a duty to prove that:

i) There was a suit pending before the Judicial Committee of the Kwahu Traditional Council.

ii) That the Respondents had full knowledge of the said suit and its due pendency before the Kwahu Traditional Council

iii) That the Respondents were parties to the aforesaid suit or were otherwise affected by the said suit

iv) That the said suit by its very nature or by reason of an order or other judicial decision touching on the suit did forbid the respondents from swearing in the 3rd Respondent as Kotosohene and/or recognising the 4th Respondent as Queen mother of Kotoso.

v) That the Respondents were fully aware of the situation in paragraph (IV) above and nonetheless proceeded to conduct themselves or otherwise act in a manner constituting a flagrant disobedience of any such existing judicial decision or order or in some other manner conducting themselves in a manner that prejudices the fair and just determination of a legitimate action pending before a lawful judicial tribunal.

The issue is: did the Appellants prove the above matters beyond reasonable doubt, as they were enjoined to do at the trial High Court?

And furthermore, before this Court, have the appellants succeeded in establishing clearly and convincingly that the trial Judge failed or otherwise neglected to exercise his discretion properly in his determination of the case leading to a failure of or a substantial miscarriage of Justice in the case?

The dossier, by way of written submissions, filed by counsel for the appellants provides a handsome, ample and sumptuous thesis on the question of contempt of Court, generally. But does it answer the specific issues raised above; and does it settle the matter so openly and compellingly in a manner that any Court of law minded to do justice would or should find the Respondents, irresistibly, to have been in contempt of Court?

In the Supreme Court case of FRIMPONG V. NYARKO (1998-99) SCGLR 734 at page  742,  Wiredu JSC (as he then was) is famously reported to have declared as follows:

“The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy however plausible can never be elevated to become a principle of law.”

As previously noted in this judgment, the matter before this Court touches on contempt of Court, which in its very nature elicits a burden and standard of proof beyond reasonable doubt.

In DARKO V. THE REPUBLIC (1968) CC 91, Amissah JA makes the point, as captured in Holding (2) of the headnotes thus:

The principle that an accused person should be acquitted if his defence is believed or if it is reasonably probable does not call for uniformity of expression by judges or the use of any particular form of words. The crucial question relevant to the point in any ordinary criminal trial turns upon whether the judge or tribunal of fact upon consideration of the whole evidence finds that the case of the prosecution has been proved beyond reasonable doubt”.

In the classical case of In Re EFFIDUASE STOOL AFFAIRS (NO.2) R.V. NUMAPAU AND ORS; EXPARTE AMEYAW II (NO.2) (1998-99) SCGLR 639 the Supreme Court held that an applicant must first make out a prima facie case of contempt before the Court could consider the Defence put upon by the Respondents.

And in R V. HIGH COURT, ACCRA; EX PARTE LARYEA MENSAH (1998-99) the Supreme Court also declared that:

Where there is no prohibition against the applicant and no evidence at all of a wilful breach of such an existent order, a conviction of contempt would amount to a patent error in law on the face of the record and consequently certiorari would lie to quash the decision of the High Court.

Ref.  also:  In  re  EFFIDUASE STOOL AFFAIRS (NO3) R. V. NUMAPAU AND ORS (2000) SCGLR  59.

It is our conviction that counsel for the Respondents herein had raised the necessary and appropriate issues in his written submissions. In particular, he has drawn proper attention to the question of a Court’s exercise of discretion and the limits of an appellate court in relation to upsetting an order or decision arising from a court’s exercise of its discretion.

Counsel for the Respondents however submitted that in an application for contempt of Court the tribunal is not necessarily called upon to merely exercise a discretionary power, unlike in a case touching on an application for prerogative writs or the granting of an equitable relief:

Counsel submitted further that in so far as the Appellants did not rely on the omnibus ground that the judgment or decision was against the weight of evidence it precludes this Court from examining the facts and evidence to ascertain whether or not the trial Judge exercised his discretion judicially.

It must be stressed that Rule 8(1) of C.I. 19 provides that an appeal shall be by way of rehearing and, consequently, this Court is enjoined to examine the record in its totality for the purpose of making a determination on even pure questions of law touching on the matter before the Court.

Not unexpectedly, Counsel for the Respondents has, contrary to the position taken by Counsel for the Appellants, submitted that the Appellants had failed to prove the guilt of the Respondents beyond reasonable doubt. Counsel for the Respondents contended that the case of the Appellants was based on conjecture and nothing more; especially considering that the Respondents denied all the material allegations contained in the plaint of the Appellants by way of their affidavit in support of their motion for contempt.

It is an established fact that the Appellants failed or otherwise, neglected to furnish the trial court with the document which, in the parlance of the celebrated case of; In Re AKOTO may be described as their “arc of the covenant.”

That document is without doubt the fulcrum around which the lever of the Appellants’ case of contempt revolves or turns. It is a document which is clearly crucial to the success or failure of the Appellants’ case of contempt of court.