IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
IN THE MATTER OF THE REPUBLIC - (Plaintiff)
NICHOLAS KOFI NEGBLE AND 4 OTHERS; EX PARTE MAMA SOTORGBE AVLEGEDE AND 5 OTHERS - (Defendants)
DATE: 12 TH JUNE, 2018
SUIT NO: E10 / 6 / 2018
JUDGES: (SGD) N. C. A. AGBEVOR JUSTICE OF THE APPEAL COURT
The Applicants in this case are seeking for an order of this Court to commit the Respondents for contempt. In their affidavit in support of their application, they claim they are principal members of the Avlegede Royal Family of Tetemale in the Akatsi South District.
Applicants claim the 1st Respondent, a native of Tetemale has arrogated to himself the powers of Zikpuitor, Fiator and Regent of Tetemale whilst the 2nd Respondent a native of Alorkpa was customarily “detained to be outdoored after 7 days and installed as a chief”. It is their claim that the 3rd Respondent is from Goni Korfe near Akatsi and an “accomplice and associate of the Respondents, the 4th Respondent is an Okyeame of Tetemale while the 5th Respondent is the queen mother of Tetemale. It is the Applicants case that when they got wind of the forthcoming installation of a new chief they consulted a lawyer who advised them to petition the Anlo Traditional Council which they did. See “Exhibit GD1” attached to this application which was duly served on all Respondents. The Registrar of the Traditional Council then issued an injunction and served on the Respondents restraining them from the installation of a chief in Tetemale. On the 24th December, 2017, Respondents imposed a curfew on the Tetemale town stating in a gong gong that they were going to perform a customary rite of a chief leading to an installation.
On the 26th December, 2017 the Applicants allege that in a contumacious defiance of the petition and the injunction (Exhibit GD2) the Respondents went ahead to commence the 7 days customary detention of 2nd Respondent pending installation as a chief. Upon complaints to the Traditional Council and the Akatsi police, per Exhibit “GD3” the Akatsi police indicated that they had granted the police protection for the installation of the new chief. Despite warnings and protests the Respondents have all participated in the installation and outdooring of the new chief. It is therefore the Applicants case that the Respondents have willfully brought the administration of justice by their conduct into disrepute and ought to be punished for contempt.
In an affidavit in opposition Nicholas Kofi Negble the head of the Negble family of Tetemale and on behalf of the other Respondents swore to oppose the application. It is their case that the application for contempt was frivolous, misconceived and brought in bad faith. They avered that when they were served with Exhibit “GD1” they sought the advice of Counsel who adviced them that the Anlo Traditional Council has no jurisdiction over chieftancy matters emanating from and within Avenor Traditional Council. Also on receipt of Exhibit “GD2” Counsel advised the Respondents that a Registrar of a Traditional Council had no authority to issue and serve an injunction against parties in a chieftancy matter. It is thus their contention that no contempt was committed and that no order of the Anlo Traditional was disobeyed. It is their case that all the customary notices and drinks were performed as required. Thus the Avenor Traditional Council approved their nomination, selection and installation of 2nd Respondent on 2/12/2017 as Togbe Klu Awlegede III of Tetemale. It is also their case that the Applicants out of mischief went to the wrong forum to institute an action and obtained a dubious injunction order when the Respondents had commenced the installation rites.
The Applicants through the 5th Applicant filed a supplementary affidavit in support to their application. They essentially deny the Respondents affidavit that it is the Avenor Traditional Council which has jurisdiction over chieftancy matters and that the Anlo Council authority ought not be disobeyed and that if they objected to the forum they had to take steps to object to the forum and not to disobey its orders.
Also Nicholas Negble the 1st Respondent swore to a further affidavit in opposition and avered that their Counsel would tender:
a) Letter dated 12/02/2018 from Mawulorm Chambers (Exhibit NKN5)
b) Letter dated 12/02/2018 (Exhibit NKN6) Funeral invitation of Togbui Awlegede II (Exhibit NKN”)
c) Burial and funeral programme of late Togbui Awlegede II (Exhibit NKA8) Mortuary Chit (Exhibit NKN9).
In the submissions of Counsel for the Applicants before this Court for contempt Counsel submitted that where the averments made were joined no evidence is required citing OFRI VRS. AYIBREBU (1966) GLR 627 SC. Counsel submitted that the Respondents filed no denial of their facts and therefore there was proof of their defiance and therefore committing contempt. The injunction was served on them and they denied it by violation citing the case MOFFAT EX PARTE AFODA (2001/2) SCGLR 678. In response Gaewu Esq. opposed these submissions. Counsel invited the Court to consider paragraphs 6 to 24 of their defence and also that only three persons and not others before this Court were before the Anlo Council. Also the Anlo Council has no jurisdiction over Avenor matters and therefore received advice that the processes from Anlo Council were void. Counsel submitted that the Avenor Council was a creature of statute and had its jurisdictional area. Citing AKYIM VRS. ADU & ORS. (1976) 2 GLR 63 at 71 and TIUEITIMI VRS. AMABEBE (14 WACA) it was reported that a lower Court has no jurisdiction unless specifically conferred on it. Also citing Section 12 (1) of the Chieftancy Act, Act 759.
Counsel admitted that they have enquired into the creation of the Avenor Traditional Council in Exhibit “NKN5” and received “NKN6” in response. The claim of an injunction served on Respondents is wrong. It was a letter from the Anlo Traditional Council not an injunction (Exhibit GD2) as a Registrar cannot grant an injunction. Mr. Gaewu submits they are not in contempt and therefore application be dismissed. This Court subpoenaed the Registrar of the Volta Regional House of Chiefs to speak to the creation and existence of the Avenor Traditional Council.
In his submissions the Registrar said there is established the Avenor Traditional Council in L. I. 1946 of 2008 and its Section 12(1) states there shall be established in every Traditional Area a Traditional Council and on the 14/12/2017 the Minister for Chieftancy inaugurated the Avenor Tradition Council therefore after 14/12/2017 the Anlo Traditional Council had no jurisdiction over the Avenor Traditional Area.
This Court is being called upon to determine whether or not the conduct of the Respondents in this matter constitutes contempt. In answering this the Court would have to determine:
· Whether the Anlo Traditional Council has jurisdiction over the Avenor Traditional Area
· Was there an injunction from the Anlo Traditional Council requiring obedience Was 2nd Respondent installed a chief in defiance of an order
· Is ration in REPUBLIC VRS MOFFAT still good law in view of EX PARTE NANA JOHN ERLZOAN and EX PARTE AMADIE BOUR
· Does the conduct of the Respondents constitute contempt.
The law is settled as to what constitutes contempt. The general ingredients are expressed in the decisions of the superior Courts and clearly in REPUBLIC VRS. SITO I EX PARTE FORDJOUR (2001/2) SCGLR 322 as follows:
There must be a judgement or Order requiring the contemnor to do or abstain from doing something It must be shown that the contemnor knows what precisely he is expected to do or abstain
It must be shown that he failed to comply with the terms of the judgement or order and that his disobedience was willful (See AGBLETA VRS. THE REPUBLIC (1977) 1 GLR.
In the EFFIDUASE STOOL AFFAIRS II, the Supreme Court held that:
Contempt was constituted by any act or conduct that tended to bring the authority and administration of the law into disrepute or disregard or to interfere with or prejudice parties, litigants or their witnesses in respect of pending proceedings and being quasi criminal and its punishment might be a fine or imprisonment the standard of proof required was proof beyond reasonable doubt. In this case there need not be a judgement or Order to be obeyed.
To be punishable the act complained of must be WILLFUL (See REPUBLIC VRS. HIGH COURT, ACCRA EX PARTE LARYEA MENSAH (1998/9) SCGLR 360 and REPUBLIC VRS. AGBLETA. Applicants case is based on evidence that there is pending a petition at the Anlo Traditional Council where an injunction has been issued and served on Respondents which has been disobeyed. The Respondents claim is that they are no longer subjects of the Anlo Traditional Council since the inauguration of the Avenor Council by the Minister for Chieftancy on the 14/12/2017. Also the injunction served on them by the Anlo Traditional Council was but a letter (Exhibit GD2) issued by the Registrar of the Council which he had no authority to issue. Our jurisprudence has settled that it is contempt when a party willfully disobeys a Court Order or judgment or that on the mere existence of a writ without an order by the Court prohibiting a certain conduct. These are Criminal and Civil contempt. In his article CIVIL AND CRIMINAL CONTEMPT OF COURT (1962) 25 MLR 179 ELIAHU HARNON states:
“The necessity of maintaining a clear cut distinction between the two kinds of contempt has often been emphasized. The reason behind this is mainly that the person against whom contempt proceedings has been commenced should not be left in doubt but be informed which is the contempt he is charged with whether civil or criminal since it might result in significant differences with regard to the following matters a) Rules of application b) Privileges from arrest c) Power to pardon d) Punishment and Execution e) Rules of evidence and procedure f) Settlement of the dispute g) Discharge or release upon compliance.
Criminal contempt requires proof beyond reasonable doubt as stated by Lord AHCIN IN SCOTT VRS SCOTT (1913) AC 417 at 454 HL – “Before an act can be deemed a contempt of Court, it must lead or be likely to lead to an interference in the administration of justice”.
A - WHETHER THE ANLO TRADITIONAL COUNCIL HAS JURISDICTION OVER THE AVENOR TRADITONAL COUNCIL
SECTION 12(1) OF CHIEFTANCY ACT 2008 ACT 759 provides –
There shall be a Traditional Council in each traditional area.
This provision is imperative and the act requires a traditional Council in each area. It is not disputed that the Avenor Traditional Area was governed by the Anlo Traditional Council. On 14/12/2017 the Avenor Council was annaugurated by the Minister. This made the Avenor Council independent of the Anlo Council independent of the Anlo Council.
The instant suit was filed on the 29th day of December, 2017 five days after the Avlenor Council came in to existence.
On the 20/12/2017 the Registrar of the Anlo Traditional Council issued an injunction on Respondents in this matter.
In REPUBLIC VRS. HIGH COURT ACCRA EX PARTE AFODA (2001-2) SCGLR 768 Kpegah JSC as page 773 stated:
"the fact that an order or a process for of, a Court of competent jurisdiction is perceived and considered void or erroneous should not give a party who is affected by the Order or to whom the process is directed, the slightest encouragement to disobey it. The thing to do is either obey or sue for a declaration to that effect or apply to have it set aside”.
In the instant case, I will differ from the dictum of Kpegah JSC by distinguishing that for a party to obey an order whether the order is void or not the source of the order ought to be clothed with jurisdiction to issue the order. Here both the Anlo Council and the Registrar with effect from 14/12/2017 had no jurisdiction over the Respondents and no Registrar of an adjudicating body has jurisdiction to issue an injunction against parties. Accordingly, the disobedience of an order from a body with no jurisdiction over a Traditional Area cannot be contempt. Imagine the chaos and fury if the Kumasi Traditional Council issues an order in a Chieftancy matter to the Anlo Traditional Counsel.
Exhibit NKN6 dated on 26/2/18 states: -
RE: AVENOR TRADITIONAL COUNCIL
We acknowledge receipt of your letter dated 12/02/2018 and inform you that the Avenor is a separate Traditional Area and with a separate Traditional Council on its own. Thanks for your usual co-operation.
Signed Muhammed Ikililu for Registrar.
IS RATIO IN REPUBLIC VRS. MOFFAT EX PARTE ALLOTEY STILL GOOD LAW
The MOFFAT Ratio states once the Respondents became aware of the Pendency of the motion before the Anlo Traditional Council, any conduct on their part which was likely to prejudice a fair hearing or interfere with the due administration of justice amounted to contempt of Court. In my opinion this has been overturned in the Supreme Court cases of REPUBLIC VRS. OSEI BONSU & ORS. EX PARTE AMADIE AND BOUR (2007/8) 1 SCGLR 566 holding 5 which states:
"to be guilty of contempt there must be conduct, action or omission on the part of the person charged with contempt which tends to undermine the authority of the Court or tribunal by interfering with the process Pending in that Court or Tribunal.
Also the Court of Appeal decision in REPUBLIC VRS. NANA KRU PERKOH II EX PARTE NANA JOHN ERZOAH where the Court was of the opinion that Affon JS decision in the High Court in MORRAT did not lay down a fast rule that a person served with an application for an interim injunction commits contempt if he does an act in relation with the pending litigation unless he commits the specific act which the application sought to stop. The ratio in MOFFAT the Court held was too wide to be applied in every case”.
The MOFFAT case is therefore only a persuasive decision by the High Court. Respondents in this matter have not committed contempt in the view of this Court.