RULING

The authority of the court to ensure that its orders are not disrespected or ignored is at the heart of contempt applications. As noted by Atuguba JSC IN RE KWABENG STOOL, REPUBLIC v BROWN; EX PARTE KARIKARI [2005-2006] SCGLR 35@41 and relying on the English authority of JENNISON v BAKER [1972] 1AELR 997 @1005-1006 CA that:

“if the orders of the court can deliberately be set at naught by a litigant employing for her own personal advantage such means as were here resorted to and if indeed it be the case that she has to go unpunished for her contumacy, justice vanishes from the horizon and the law is brought into disrepute… in the memorable words of his honour Judge Curtis –Raleigh:” the law should not be seen to sit by limply while those who defy it go free and those who seek its protection lose hope”.

The Applicants have mounted this application under Order 50 of the High Court (Civil Procedure) Rules, C. I. 47 seeking an order of committal for contempt against the Respondents. The grounds for the application can be gleaned from the affidavit and the supplementary affidavits that accompanied the application. The 1st Applicant in his affidavit claim that the 2nd Respondent, who is the Paramount Chief of Osudoku Traditional area inaugurated a nine member arbitration committee headed by Nene Terkpetey Omersu V for the purpose of settling a chieftaincy dispute between Gbese Tekworsi Division and Tsangmer Clan. This committee duly conducted the assignment and submitted its report to the 2nd Respondent. Based on the recommendations of the committee, 2nd Respondent, according to Applicants held a ceremony at Osuwem and introduced nine new chiefs that included 3rd and 4th Respondents as having been elevated to positions of sub-divisional chief and divisional chief of Gbese Tekworsi respectively.

Applicants further contend that being so aggrieved and dissatisfied with the findings and recommendations of the arbitration committee based upon which the 3rd and 4th Respondents were elevated, they filed an application for judicial review to quash the findings and recommendations of the arbitration committee. And same was granted by the High Court on the 14th of July, 2017 where the court granted an order of certiorari quashing the findings of the arbitration committee. Coram Arkaah Boafo J. It is the case of the Applicants that the order of the High Court was duly served on the Respondents even though the Respondents were in court when the ruling was read. That notwithstanding the order quashing the findings of the arbitration committee based on which the 3rd and 4th Respondents were elevated to divisional and sub divisional chiefs, the 1st and 2nd Respondents have failed or refused to give what they claim “any attention to the order of the court”  as they have held a ceremony to introduce the 3rd and 4th Respondents as chiefs contrary to the order of the court. For the 1st and 2nd Respondents to continue to treat the 3rd and 4th Respondents as chiefs and for them also to hold themselves as such, to Applicants amount to contempt of court and accordingly seek an order for their punishment by this court.

In a supporting affidavit also deposed to by one Lydia Lamptey she claim that the 4th Respondent has disregarded the orders of the High Court dated the 14th of June, 2017 by holding himself out as Divisional Chief of Gbese Terkworsi by making payment of Ghc5,000.000 to 1st Respondent in respect of the annual festival of Osuduku. Respondents have fiercely parried the allegation that any conduct of theirs amount to contempt of court. In separate affidavits in opposition deposed to by Nene Ogbe Asumeng and Nene Aadegbor Ngmogmowuyaa Kwesi Animle IV they claim that the performance of traditional ceremony of elevating them to the status of chiefs in Osudoku Traditional Council was done before the order of the High Court quashing the findings of the arbitration committee as the recommendations of the arbitration was effected in October 2016 whiles the order of the High Court quashing the findings of the arbitration was on the 14th of June, 2017. And that the Respondents are unaware that the order quashing the findings of the arbitration committee also declared as null and void the performance of the customary rites of their elevation as chiefs. Respondents are emphatic that the second leg of the application of the Applicants for certiorari before Arkaah Boafo J was declined by the court as the Applicants had sought for a further order of injunction to restrain the Respondents herein from implementing the recommendations of the arbitration committee.

To Respondents it is their understanding that the quashing of the recommendations of the arbitration committee does not amount to a destoolment of the Chiefs as in their view their status remained the same. It is their claim that if the Applicants were minded to effect or enforce any decision of the court on chieftaincy matters then the correct forum should have been the judicial committee of the Osuduku Traditional Council and therefore pray for the dismissal of the application. Contempt applications being a quasi-criminal trial the Applicants are under duty to prove its case beyond reasonable doubt. In the case of COMET PRODUCTS UK LTD v HAWKES PLASTICS LTD [1971] 1 ALLER 1141 @1143, Lord Denning noted that:

“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 a proceeding… it must be proved with the same degree of satisfaction as in the criminal charge”

See also IN RE EFFIDUASE STOOL AFFAIRS; REPUBLIC v. ODURO NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS & OTHERS; EX –PARTE AMEYAW II (NO.2),(1998-99) SCGLR 639 wherein the Supreme Court noted on the standard as follows that:

“Since contempt of court is quasi criminal and the punishment for it might include a fine or imprisonment the standard of proof required was proof beyond reasonable doubt. An applicant must therefore first make out a prima facie case of contempt before the court could consider the defence put up by the respondents”

Section 13(1) states as follows:

‘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 a reasonable doubt’.

See also REPUBLIC v HIGH COURT; EX PARTE JOSHUA NMAI ADDO [2015] 83 G.M.J 7 @13.

In this respect, it must be quite clear that Respondents would only have a case to answer if only the Applicants succeeds in establishing a prima facie case that the court will deem it fit to consider the defence of the Respondents. As after all it is not the rule in criminal trial for a prosecutor to shore up his evidence by seeking to bolster its case by relying on the defence of an accused. The obligation cast on the Respondents are to raise reasonable doubt as to their guilt and nothing more.

Merriam-Webster’s Dictionary of Law defines contempt of court as follows:

“wilful disobedience or open disrespect of the orders, authority, or dignity of a court or a Judge acting in a judicial capacity by disruptive language or conduct or by failure to obey the court’s orders”.

In his book Contempt of Court (2nd Ed.)(1895) at page 6, Oswald states as follows:-

‘Contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants, or their witnesses during the litigation.’

In RE EFFIDUASE STOOL AFFAIRS (NO.2) supra the Supreme Court noted as follows when it set out the kinds of contempt known to the law that:

‘’Civil contempt are those quasi-contempt which consist in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceedings before the court, while criminal contempts are acts done in disrespect of the court or its process, or which obstruct the administration of justice or tend to bring the court into disrespect.’’

It is worthy of note that contempt is the only common law offence that has been maintained under our Constitution and statute laws. Article 126(2) of the Constitution, section 36 of the Courts Act, Act 459 and states this, thus making an exception to the provisions of article 19 (11) of the Constitution and section 8 of the Criminal and Other Offences Act, 1960, Act 29 that establishes the principle of nullum crimen, nulla poena sine lege praevia lege poenali and states that:

“No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law”.

In terms of punishment for contempt upon conviction, Halbury’s Laws of England, 4th Ed. Vol. 10 paragraph 87 @ 5 states as follows:

“Criminal contempt of court is punishable by a fine or by an order to give security for good behaviour. Civil contempt of court is punishable by way of committal or by way of sequestration. The writ of sequestration though in its nature a process for dealing with contempt is a form of civil execution and is not applicable to criminal contempt… Civil contempt may also be punished with a fine or an injunction may be granted against the contemnor”.

The application before me is one in the nature of a civil contempt. Civil contempt consists in wilful disobedience to the orders, judgments, decrees or directions of a court requiring a Respondent to do an act or refraining from doing an act. In civil contempt the order that is alleged to have been disobeyed should be clear. In the case of REPUBLIC v SITO; EX PARTE FORDJOUR [2001 – 2002] SCGLR 322 the court noted the following to be the ingredients of civil contempt: that one there must be a judgment or order requiring the contemnor to do or abstain from doing something, two it must be shown that the contemnor knows what precisely he is expected to do or abstain from doing; three, it must be shown that he failed to comply with the terms of the judgment or order and four that his disobedience is willful.

See also OPOKU v LIBHERR FRANCE SAS [2012] 1 SCGLR 159 @162.

It is also the communis opinio within the legal fraternity that contempt may also be committed even when there is no specific order of the court that has been violated as long as a party has acted in a manner that is prejudicial to a pending matter before the court or a conduct that is prejudicial to the res litiga. See REPUBLIC v AKENTEN II; EX PARTE YANKYERA [1993-94] 1 GLR 246 CA; REPUBLIC v TOTOBI QUAKYI C/M 45/94 dated 26/7/94. Can it be said that the Applicants have satisfied the above test and proved them beyond reasonable doubt? It appears that this application has been mounted based on the ruling of my learned brother Ackaah Boafo, J dated the 14th of June, 2017 wherein the court granted an order of certiorari to quash the findings and recommendations of the arbitration committee. The ruling of the court has been attached to the Applicants’ motion as Ex ‘E’. The Applicants had applied for certiorari and consequential orders to restrain the Osudoku Traditional Council from implementing the recommendations of the arbitration committee. Justice Ackaah Boafo was emphatic that as far as judicial review applications were concerned, the powers of the court was only limited in quashing and remitting only and nothing else.

The court accordingly stopped short of ordering the Osuduku Tradtional Council from implementing any recommendations. In that respect, it cannot be said that there was an order of the court that restrained the 3rd and 4th Respondents from holding themselves out as chiefs within the Osudoku Traditional area. It would be stretching the ruling of 14th June, 2017 of the issuance of certiorari as also encompassing an order restraining the 1st and 2nd Respondents from recognizing the 3rd and 4th Respondents as chiefs. As noted in EX PARTE SITO supra, the order of the court alleged to have been violated must be clear enough as to indicate what the Respondent is expected to do or refrain from doing. How clear, unambiguous, explicit and free from doubt is an order for certiorari that quashed the findings of an arbitration committee recommending the 3rd and 4th Respondents for elevation as chiefs? I accordingly reject the depositions contained in the affidavit of Lydia Lamptey that the alleged payment of monies by 4th Respondent to 1st Respondent was in total disregard of the ruling of Ackaah Boafo J. I am unable to find even by any stretch of imagination that the said ruling restrained 3rd and 4th Respondents from holding themselves out as chiefs. Indeed the learned Judge refused that prayer.

The grounds upon which a respondent may be convicted for contempt has woefully not been met in this case. Contempt powers of the court is deployed sparingly and only in exceptional cases where the contempt is clear and blatant. I do not find such here. I accordingly dismiss the application. I will exercise my discretion and award cost of GH¢2,000.00 against each of the Applicants in favour of the Respondents.

ERIC K. BAFFOUR,

ESQ. JUSTICE OF THE HIGH COURT