IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
THE REPUBLIC - (Plaintiff)
SAMUEL ASAMOAH AND 3 OTHERS; EX PARTE TOGBE JOSEPH MENSAH ANKU AND 2 OTHERS -(Defendants)
DATE: 26 TH SEPT, 2018
SUIT NO: E12 / 50 / 2018
JUDGES: ERIC B A AH JUSTICE OF THE HIGH COURT
C. K. KOKA FOR APPLICANTS
NELSON KPORHA FOR RESPONDENTS
On 29th February, 1996, the predecessors -in- title of the applicants filed a petition against respondents at the Asogli Traditional Council, claiming among others that the Fiaga, which is the head stool of Taviefe, called the Agbeli stool, is exclusively owned by the Agbeli stool family and as a result, succession to the said stool is confined to the Agbeli family alone, and not rotatory between the Agbeli and Daketey families.
In its decision dated 15 December, 1999, the Judicial Committee of the Asogli Traditional Council upheld the claims of applicants' family. Respondents therein and herein, appealed the said decision to the Judicial Committee of the Volta Regional House of Chiefs. The Judicial Committee of the said house, by its decision dated 9th August, 2017, upheld the appeal and nullified the judgment of the Asogli Traditional Council, which favoured applicants. Applicants were dissatisfied with the judgment of the Judicial Committee of the Volta Regional House of Chiefs, and have appealed to the Judicial Committee of the National House of Chiefs. It is certain purported acts by the respondents, after applicants' appeal had been filed, that compelled the instant application.
B. APPLICANTS' CASE
Applicants allege that respondents have engaged in a number of acts, all aimed at undermining the pending processes and the administration of justice. They list the following acts by respondents:
i. That inspite of the appeal to the National House of Chiefs acting as a stay of execution, and the filing of a motion for interlocutory injunction to restrain the acts of respondents, respondents proceeded to install 4th respondent as paramount chief of Taviefe. In support of the allegation, applicants exhibited an invitation letter to the installation and a copy of the motion for interlocutory injunction.
ii. That 4th respondent has since been parading himself as chief. A number of instances were cited. It was alleged that at the burial ceremony of one Aikins Kofi Asamoah on 4th November, 21017, 4th respondent was paraded and introduced as paramount chief in the presence of personalities such as Mr. Freddie Blay and his wife, Mrs, Gina Blay, who is Ghana's ambassador to Germany.
Also, on 3rd December, 2017, 4th respondent was introduced to a service at Glory Renewal church, Taviefe – Avenya, as the paramount chief of Taviefe. Also, by an invitation a letter dated 19th September, 2017, and headed “office of the Paramount Chief of Taviefe”, all chiefs of Taviefe were invited to meet the 4th respondent.
Further, respondents on 7th September, 2017, addressed a letter to the president of the Asogli Traditional Council, as a notice for the installation of a paramount chief for the Taviefe Traditional Area.
iii. That respondents on 16th May, 2018 published the picture of 4th respondents in the "Daily Graphic" and announced him to the whole world as the paramount chief of Taviefe.
C. RESPONDENTS' CASE
6. Respondents deny flouting any orders of the Judicial Committees of the House of Chiefs or undermining the administration of justice. That was because, 4th respondent was installed long before the motion for interlocutory injunction was filed, and in any case; they alleged, the installation of 4th respondent was proper and in accordance with the customs, traditions and practices of the people Taviefe.
7. They explain that the request to publish the picture of 4th respondent in the “Daily Graphic” was made long before they were served with the application for committal for contempt.
D. SUBMISSIONS BY COUNSEL FOR PARTIES
Counsel for the parties argued their cases on the carious issues on 29 August, 2018. I will refer to the relevant parts where necessary, in the course of my speech.
8. From the affidavit evidence before me and the submissions of counsel for the parties the issues I consider relevant for the determination of the application are as follows:
(i) Whether or not there is a judgment or order of the court (The Judicial Committees of the Asogli Traditional Council or the Volta Regional House of Chiefs) which require the respondents to do or abstain from doing something.
(ii) Whether or not there is any pending application or proceeding which estopped the respondents from installing 4th respondent as paramount chief of Taviefe Traditional Area.
(iii) Whether or not respondents had knowledge of any such application or procedure; and
(iv)Whether or not respondents intentionally, wilfully and defiantly acted in contempt by causing the publication in the “Daily Graphic"
i. Whether or not there is a judgment or order which requires respondents from doing or abstaining from doing something.
9. There are two judgements which affect the parties. The first was by the Judicial Committee of the Asogli Traditional Council which handed victory to applicants. The second is a judgment by the Judicial Committee of the Volta Regional House of Chiefs, which reversed the Asogli Traditional Council and entered judgment for the respondents.
10. The question is; did any of the above judgments make any order which the respondents can be said to have violated and therefore in contempt?
In Republic v Sito; Ex-parte Fordjour', the court held the elements of contempt of court to be as follows:
There must be a judgment 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 from doing; and 1.
It must be shown that he failed to comply with the terms of the judgment or order and that the disobedience is wilful.
The court can determine the issue as to whether respondents violated an order or judgment of the court by weighing the reliefs and orders of the courts, against the actions of the respondents complained of.
The principal accusation against the respondents is that, they have installed 4th respondent as paramount chief of Taviefe, and have paraded him before the whole world as such.
11. The reliefs sought by applicants at the Asogli Traditional Council centred on whether or not it is applicants' Agbeli stool family or respondents' Daketey family which owns the Fiaga or Head stool of Taviefe. Applicants sought a declaration that succession to the said stool is not rotatory between the Agbeli and Daketey families, and that it is the Agbeli family which exclusively owns the said Fiaga or Head Stool of Taviefe. Other reliefs related to ascension to the said office and perpetual injunction against respondents.
12. The decisions of the Asogli Traditional Council and Volta Regional House of Chiefs (Judicial Committees thereof), only touched on the reliefs of applicants, which relates to the Fiaga or Stool fathership. Nowhere was the issue of ascension to the paramountcy of Taviefe dealt with. There is accordingly, no existing judgment or order of the Judicial Committee(s) which restrained respondents from installing a paramount Chief for Taviefe. Respondents cannot be said to have violated a court judgment or order which restrained them from installing 4ch respondent as paramount chief of Taviefe.
ii. Whether or not there is any pending application or proceeding which stopped the respondents from installing 4" respondent as paramount chief of Taviefe Traditional Area
13. The definition or description of contempt of court as in Ex-parte Sito (supra), must be understood to relate to instances where the applicant alleges that the violations of the respondents relate to a specific court order or judgment. Contempt of court however transcends actions that violate judgments or orders of a court.
In the Report of the Committee on Contempt?, it was stated:
“The law relating to contempt of court has developed over the centuries as a means whereby the courts may act to prevent or punish conduct which tends to obstruct, prejudice, or abuse the administration of justice either, in relation to a particular case or generally”.
In Att-Gen. V Times Newspaper Ltd Lord Diplock set out basic requirements for the administration of justice as follows:
"...first that all citizens should have uninhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitration of a tribunal which is free from bias against any party, and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or undermine the public confidence that they will be observed is contempt”. The same general definition of contempt is adopted by Oswarld on Contempt*
14. That definition, was adopted and applied in Interim Executive Committee of Apostolic Divine Church of Ghana v Interim Executive Council and Ors (No2), by Asare – Kwapong J, and the Suprem court per Acquah JSC) (as he then was) In Re Effiduase Stool Affairs; Republic v Numbapau, President of the National House of Chiefs & ors; Ex-parte Ameyaw II (No2).
15. The question here is; is there a pending application or proceeding which the respondents violated and thereby committed contempt?
The actions of the respondents would therefore be scrutinised against the existing court orders ad proceedings pending at the times the incidents grounding the applicants accusations occurred. If they acted to abstract, prejudice or abuse the administration of justice, they will be liable for contempt, and vice versa.
2. Report of the Committee on Contempt, Cmmd. 5794 (1974) paragraph 1
3. [1974) AC 273,309
4. Oswald on contempt, 3rd edition, page 6
5. [1984-86) 2GLR 181
6. [1998-1999] SCGR 639
The first point of inquiry is as to whether the appeal to the National House of Chiefs by applicants estopped respondent from installing 4th respondent as paramount chief of
The decision of the Judicial Committee of the Volta Regional House of Chiefs (JCVRHC) was made on 9th August, 2017. Applicants claim that they instantly lodged an appeal to the National House of Chiefs. A copy of the appeal was annexed as exhibit “JA3”.
It was prepared on 17 August, 2017, and was filed the same day.
16. Ordinarily, the filing of the appeal operated as a stay of execution of the judgment of the Judicial Committee of the Volta Regional House of Chiefs.
Section 34 (1) of the Chieftaincy Act provides:
"subject to subsection (2), an appeal to the National House or to a Regional House against a final judgment or order operates as a stay of execution of the judgment or order appealed against and any other order made on it consequently unless the appellate tribunal otherwise directs.”
Per section 34 (2); real with section 62 (3) (b) Act 759, "an appeal does not operate as stay of execution if filed within the last seven days of the fourteen days”, of the fourteen days period notice is required to be given before installation of a chief or queen mother in accordance with section 62 (2) of Act 759.
17. Even though an appeal operates as stay, it does not stay every action of the respondent to the appeal. What it stays is the executable aspects of the judgment or order; which but for the appeal, the judgment creditor could execute by one of the court's processes of execution.
In Oppan v Frans & co Ltd® , it was held; holding (1):
“Staying execution meant suspending the enforcement of a judgment under the procedure prescribed by law for enforcing judgments. In the case of an application to the High Court it meant stopping, delaying or imposing, any fetters on a judgment creditor to obtain an appropriate writ of execution under the provisions of the High Court (Civil Procedure) Rules..."
18. Installation of a chief required no writ of execution from the court, and therefore was not an act stayed by reason of the appeal.
7. Chieftaincy Act, 2008, Act 759.
8. [1984-1986) 1 GLR 281, CA.
Further, since the judgment of the Regional House did not touch the question of installation of a paramount chief, the appeal could not have stayed such an action.
As I mentioned above, the fact that an appeal operates as a stay does not mean that it stays actions that the judgment appealed against did not address by way of coercive orders.
19. In any case, since the installation of 4th respondent was on 23rd August 2017, and the appeal was filed on 17th August, 2017; therefore within the last seven days of confinement, the appeal; per section 62 (2) (b) of Act 759, could not have automatically operated as stay.
iii. Whether or not respondents had knowledge of the application for interlocutory injunction
20. The only procedure that could halt the installation, was an order for interlocutory injunction specifically targeted at the installation. Applicants indeed filed such a motion 18th August, 2017. The question is; were the respondents aware of that application at the time of the installation on 23rd August, 2017.
21. Knowledge on the part of the respondent on the need not to engage in a particular conduct is critical. Ignorance of the law excuses not – ignorantia juris neminem excusat. However, lack of knowledge of a judgment or order that unambiguously asks the respondent to do or abstain from doing a thing, or ignorance; in the absence of mens rea, that a particular conduct obstructs, prejudices or abuses the administration of justice, may be an excuse from being punished for contempt.
In Republic v Boateng & Oduro; Ex-parte Agyenin Boateng & ord', the apex court held per Dotse JSC:
"In our opinion, the respondents have not been proven to have had knowledge of the pendency of the motion for stay of execution... Indeed, there was no judgment, or pending application duly served on the respondents requesting them to do or abstain from doing something which they wilfully flouted. This is an essential ingredient of proof of contempt. Once this crucial ingredient is lacking, the application must fail. In the circumstances, the alleged contemnors do not know what they are expected to do or abstain from doing...”
22. Applicants annexed to their supplementary affidavit dated 6th June 2018, a number of certificates of service of processes on respondents. Amongst them is an affidavit of service indicating that the motion for interlocutory injunction was served on respondents on 25th August, 2017. It is noted that the 4th respondent had been installed two or three days earlier on 23rd August, 2017. Could respondents be said to have had knowledge and notice of the motion for interlocutory injunction before they installed 4th respondents? The answer from the foregoing is in the negative.
iv. Whether or not respondents intentionally, wilfully and defiantly acted in contempt by the publication in the “Daily Graphic”
23. Respondents were alleged by the applicants to have acted contemptuously by publishing the image and status of 4th respondent as the installed paramount chief of Taviefe in the “Daily Graphic” of Wednesday, May 16, 2018. That was after the application for contempt has been served on them.
Respondents answer that they had already placed the request for publication, and could not call it back. Applicants insisted that was not the case, and in any case, respondents could have recalled the advert if they so desired.
24. Even where a respondent has engaged in acts that are contemptuous, he will be punished only if the acts complained of were wilful and intentional defiance of a judgment, order or proceeding. The respondents must be shown to have set out to prejudice, obstruct or abuse a judgment, order or proceeding. Merely proving that respondents' acts were contemptuous is not sufficient to invoke punishment on them. In Luguterah v Northern Engineering Co. Ltd., Taylor J (as he then was) held:
"The conduct of the respondents and their legal adviser constituted contempt of court because it was calculated to bring the administration of the law into disregard or disrespect. However, they would not be punished for contempt because there was no proof that the contempt was wilful in the sense of not having been accidentally and intentional.”
The rule has been applied in a number of cases including Ableta v The Republic11; Gbadamosi v Mohammadu12; and Akele v Cofie13
10. (1980) GLR 62
11.  1GLR 445, CA
12.  1GLR 283
13.  GLR 84
25. The motion on notice for committal for contempt was served on 1st respondent on 15th May, 2018. Even though personal service was required, 1st respondent allegedly offered to serve the other respondents and accordingly collected their copies.
Respondents have not complained about non-personal service. They have accordingly waived their right to complain about the wrong service.
The fact then is that, all respondents were served the motion for contempt on 15th May, 2018.
26. The picture and other materials about 4th respondent appeared in the “Daily Graphic” the next day, that is, 16th May, 2016. In the natural and normal course of events, one cannot place an advert request with the “Daily Graphic” and have it published the next day.
Respondents' claim that they had placed the advert sometime before they received the motion for contempt of court is therefore sound fact.
27. The installation of 4th respondent is a fait accompli; and the motion for interlocutory injunction aimed at holding that accomplished process is obviously stale and a non-starter.
Since respondents had not been served with the motion for contempt of court, the publication they caused in the “Daily Graphic” cannot be said to have been done wilfully and intentionally for the purpose of obstructing, prejudicing or abusing the pending proceedings.
I conclude as follows:
That the judgment of the Judicial Committee of the Volta Regional House of Chiefs did not order respondents to do or abstain from doing anything, in particular, from not installing 4th respondent as paramount chief of Taviefe.
By the time the motion for interlocutory injunction was served on respondents, 4th respondent had already been installed.
The request for publication in the Daily Graphic had been placed by the time respondents were served with the motion for committed for contempt.
Applicants failed to prove their allegations. The application is dismissed for lack of merit.