THE REPUBLIC vs NATIONAL SECURITY CO-ORDINATOR & 6 OTHERS EXPARTE; NII AKO NORTEI IV.
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6)
    ACCRA - A.D 2018
THE REPUBLIC - (Plaintiff)
NATIONAL SECURITY CO-ORDINATOR AND 6 OTHERS EXPARTE: NII AKO NORTEI IV - (Defendants)

DATE:  23 RD FEBRUARY, 2018
SUIT NO:  CR/868/2017
JUDGES:  JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  BRIGHT OKYERE ADJEKUM WITH MAAME SARPONG LED BY FRANK DAVIES FOR THE APPLICANT PATIENCE ADUMUA-LARTEY (CSA) FOR THE 1ST – 5TH RESPONDENTS KWESI FYNN FOR 6TH & 7TH RESPONDENTS
OBJECTION TO THE ADMISSIBILITY OF 1 ST – 5 TH RESPONDENTS AFFIDAVIT IN OPPOSITION FILED

 

i. Background:

 

[1] The issue for my determination is free from complexity but an important procedural issue. On December 6, 2017 the Applicant filed at the registry of this Court an Application for Committal for Contempt of Court pursuant to Order 50 of the High Court Civil Procedure Rules, 2004, C.I. 47 of all the named Respondents. After the service of the application on the Respondents, the 6th and 7th Respondents deposed to affidavits in opposition by themselves; in effect they have spoken for themselves. On January 17, 2018 Miss Tricia Quartey (Senior State Attorney) of the Ministry of Justice and Attorney General’s Department deposed to a 15-paragraph affidavit in opposition for the 1st, 2nd, 3rd, 4th and 5th Respondents to the application. The Court’s admission and reliance on the said affidavit is the subject-matter of the instant legal objection by Counsel for the Applicant who has submitted with some amount of force urging on the Court to reject the affidavit on the grounds that “there is no affidavit in opposition for the 1st to 5th Respondents” because they have not deposed to individual affidavits in opposition.

 

 

 

ii. Arguments for & arguments the Objection:

 

[2] Learned lead Counsel for the Applicant, Mr. Frank Davies submitted to the Court that “the title of the application speaks for itself’ to the extent that this is a contempt application. Counsel submitted that it is trite learning that contempt is quasi-criminal and conviction potentially carries a penalty of custodial sentence even if for a day or hours and therefore it is the “accused” who ought to answer for him or herself. Counsel further submitted that “in the body of the Court, the Respondents stand before the Court as accused persons and that is why they have to respond to the charge and/or explain their absence to the Court.

 

 

 

[3] Further, Mr. Davies submitted that “we all know that nobody takes a plea for an accused because the punishment is in personam,” therefore according to Learned Counsel the persons cited for contempt who are known persons in the country ought to speak for themselves. To that extent and in the view of learned Counsel, Tricia Quartey SSA cannot by any stretch of imagination attempt to depose to an affidavit for the Respondents. Mr. Davies further submitted that should the Respondents be convicted, the deponent cannot go to jail for them. Learned Counsel anchored his objection and submission in the statement of Hayfron Benjamin JSC (as he then was) in the case of IN RE: EFFIDUASE STOOL AFFAIRS (No.2); EX PARTE AMEYAW II (1998-1999) SCGLR 639 at 660 and submitted that the law is that each Respondent ought to file his or her own affidavit.

 

 

 

[4] Responding to the objection, the Learned Chief State Attorney Patience Adumua Lartey also made reference to the title of the suit and submitted that the Respondents are public officials sued in their personal capacities. According to learned Counsel the nature of the Respondent’s offices are transient and they do not have any fixed term of office because they can be replaced at any time and therefore the objection is misconceived. Mrs. Adumua Lartey further submitted that Ms. Tricia Quartey deposed to the affidavit based on information gathered as part of her official duties as a state attorney because the Attorney General under the State Proceedings Act represents the 1st to 5th Respondents.

 

 

 

[5] It is also the position of the Learned Chief State Attorney that nothing prevents the Applicant’s Counsel from cross-examining the deponent of the affidavit with regards to her personal knowledge and the facts acquired in the course of her duties. Finally, learned Counsel submitted that the statement relied on by Mr. Davies was in the dissenting minority opinion and therefore the Supreme Court did not state in EX PARTE AMEYAW SUPRA as a principle or the law that Respondents ought to swear to affidavits personally when cited for contempt. Counsel therefore prayed the Court to overrule the objection.

 

 

 

[6] Counsel for the 6th and 7th Respondents, Mr. Kwesi Fynn also submitted that he disagrees with the objection raised by the Applicant’s Counsel. Mr. Fynn submitted that “it has never been the law of this land that parties cited for contempt must swear to their own affidavits.” Learned Counsel relied on the case of IN RE LARTEY (DECEASED); LARTEY v. AFFUTU-NARTEY [1972] 2 GLR 488 for the submission.

 

 

 

[7] Further, learned Counsel submitted that the objection is misconceived because the whole purpose of an affidavit is to give evidence and therefore if it is not reliable it goes against the Respondents but to say same cannot be considered is not the law. Counsel submitted that Ms. Tricia Quartey’s affidavit is evidence which the Court should rely on because there is no law which says a person cited for contempt should swear to his own affidavit. Counsel further cited the case of KANGAH v. KYERE (1979) GLR 458 for the submission and also prayed the Court to overrule the objection because a person charged with a criminal offence can choose to call a witness without testifying in his or her own defence.

 

 

 

iii. The Court’s Opinion & Analysis:

 

[8] It is pertinent to observe that unlike the United Kingdom Contempt of Court Act there is no codified legislation in Ghana that defines the act or omission that constitute the offence of contempt. It therefore sounds to reason that Ghanaian courts resort to case law to resolve any issue regarding contempt when confronted with one. For the purposes of this objection, the starting point in my respectful opinion is the procedure that governs the filing of an application for Contempt and what is required of a person so attached.

 

 

 

[9] By Order 50 of the The High Court Civil Procedure Rules, 2004 CI 47 an application for committal for Contempt is commenced by an application which should be served on the person sought to be attached. The provision of the law titled “Committal for Contempt” runs as follows:

 

(1) The power of the Court to punish for contempt of court may be exercised by an order of committal.

 

(2) Committal proceedings shall be commenced by an application to the Court.

 

(3) The application shall be supported by an affidavit stating inter alia the grounds of the application.

 

(4) Subject to subrule (5), the notice of motion, together with a copy of the affidavit in support of the application shall be served personally on the person sought to be committed.

 

(5) Without prejudice to its power under Order 7 rule 6 the Court may dispense with service of the notice of motion if it thinks it just to do so

 

2. Nothing in rule 1 affects the power of the Court to make an order of its own motion against a person to show cause why the person should not be committed for contempt of court.

 

 

 

[10] Significantly, whilst the rule requires that the person sought to be committed is to be served with the application personally, it does not state that the person ought to provide an answer to the application. It is the Court which on its own motion may make an order for the person to “show cause why he/she should not be committed for Contempt.” It however, does not provide the mode by which the person is to show cause. The effect therefore in the opinion of the Court is that there is no requirement in the rules of procedure that a person attached ought to respond formally to the application.

 

 

 

[11] Indeed, that procedural position is consistent with the law because it is a settled rule that the offence of contempt of court is quasi-criminal thus the standard of proof required is that of proof beyond reasonable doubt[2] and the principle of law is also quite clear that where a person is charged with contempt of court, his guilt should be proved with the same strictness as required in a criminal trial of proof beyond reasonable doubt by the Applicant. The onus on the Applicant to prove beyond reasonable doubt the guilt of the alleged contemnor does not shift until a prima facie case is established and then the person sought to be attached is called upon to answer.

 

 

 

[12] As stated above, because there is no formal law on contempt, Ghanaian Courts resort to case law when confronted with issues of contempt. In this particular case, it has been profoundly suggested by learned Counsel for the Applicant that there is no evidence put forward by the 1st to 5th Respondents because they have not individually answered to the charge by filing affidavits in opposition. The objection is anchored on the statement of law by the Supreme Court per Charles Hayfron Benjamin JSC (as he then was) in EX PARTE AMEYAW SUPRA. To leave no one in doubt, I hereby set out here below in extenso, the exact words of the apex Court. It is recorded at page 651 of the report as follows:

 

“When the respondents appeared before us, this court pointed it out to them that since the charge of contempt was quasi-criminal it was necessary for each respondent to answer for himself. They all, except the sixteenth respondent, replied that they supported the fourteenth respondent’s affidavit in opposition. As it turned out, they did not appear to have any knowledge of the contents of his affidavit.”

 

 

 

[13] Admittedly, the above is the general position of the law; but does it say how the Respondent ought to answer? In the considered opinion of this court the Supreme Court did not state the “how” each Respondent is to answer the charge of contempt and therefore it is not an inflexible rule that a Respondent ought to answer “personally” to the charge necessarily. I wish to state that I have tried but failed to locate any other local case in which the Supreme Court has pronounced upon the subject matter in plaintive language that a Respondent in a Contempt application must personally file his or her affidavit in opposition. I have also looked at other common law jurisdictions for guidance but found none.

 

 

 

[14] It is to be noted that, in the usual case, where a person is charged with a criminal offence he may choose to have someone testify on his/her behalf as a witness and not testify himself and that testimony is not rejected because it was not proffered by the person charged. Therefore, viewed from the eyes of the well-known principles established at common law and by our Superior Courts, Ms. Quartey’s affidavit evidence cannot be rejected as no evidence at all as submitted by learned Counsel. In the result the submission of Mr. Fynn on this point deserves my respect and is therefore upheld.

 

 

 

[15] In the respectful opinion of the Court and with due deference to learned Counsel for the Applicant, based on the law, the issue with the affidavit deposed to by Ms. Quartey is not about its admissibility but its relevance in this matter. Undoubtedly, relevance consists of two components: materiality and probative value. The term materiality is concerned with the relationship between the proffered evidence and the issues in the case. Relevant evidence is evidence that has a tendency to make the existence or non-existence of any fact that is material to the determination of a material fact or issue more probable or less probable that it would be without the evidence. But, the relevance of the affidavit evidence which is the centerpiece of this objection is a different matter to be determined later in this application.

 

 

 

[16] Having reviewed the law and the case relied upon by learned Counsel critically, the statements of the law based on procedure and practice persuade me to disagree with Mr. Davies that a Respondent in a contempt application ought to “personally depose to the affidavit in opposition” otherwise there is no evidence put before the Court. In my respectful opinion, evidence from third parties to answer to the charge of contempt ought to be acceptable whether or not the person charged choose to provide evidence himself. This is a right which should always be afforded a Respondent charged with contempt for he or she might otherwise be required to give evidence himself or herself or be deprived of evidence required for the defence.

 

 

 

[17] In my respectful opinion an alleged contemnor must have the liberty as to how he or she will answer to the charge. Applying the principles of the law and the reasons stated supra, the irresistible conclusion is that there is no law either at common law, by statute or case law that a person charged with Contempt ought to answer by filing an affidavit in opposition personally. It is an erroneous position long held by practitioners in this jurisdiction but this Court is of the respectful opinion that it is not anchored in law or procedure and therefore the time has come to categorically reject same. The objection is therefore OVER-RULED. The affidavit filed and on the docket is admitted for what it is worth in answer to the charge of contempt against the 1st to 5th Respondents.