REPUBLIC VRS OMAN (CR/0262/2022) [2023] GHAHC 417 (22 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COMMERCIAL DIVISION (COURT 1) OF THE HIGH COURT OF JUSTICE ACCRA, HELD ON WEDNESDAY THE 22ND DAY OF OCTOBER, 2023 BEFORE HER LADYSHIP JUSTICE SHEILA MINTA SUIT NO. CR/0262/2022 THE REPUBLIC VRS. STEPHEN TETTEH OMAN EX-PARTE: NUUMO TEI TETTEHGUA AYITTAH - - RESPONDENT APPLICANT ---------------------------------------------------------------------------------------------------- INTRODUCTION JUDGMENT By an application filed by the Applicant on 28th January, 2022, he prayed the Court for an Order for Committal of Contempt against the Respondent for the disobedience of the decision of a Judicial Committee of the Ningo Traditional Council. In an Affidavit in Opposition of the Respondent filed on 10th February, 2022, the Respondent denied having disobeyed the said order and that being duly elected and enstooled as Asafoatsegua of Kabiawe entitled the newly installed Mankralo to swear allegiance to him in accordance with custom. According to the Respondent he did not single-handedly appoint a new Mankralo to have been said to have disobeyed the decisions of the Judicial Committee and therefore the current application has been brought in bad faith. Page 1 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN Events leading to the filing of the current application briefly is that the Applicant filed a Petition at the Judicial Committee of Ningo Tradition Counsel against the Respondent for the following reliefs: - a. A declaration that the 2nd Petitioner is nominated, selected and enstooled Asafoatse of the Bantama-Kabiawe Clan under the stool name Asafoatse Barimah Blemano Oman V. of the Bantama- Kabiawe Clan of Ningo. b. A declaration that the Bantama-Kabiawe Clan has not installed the Respondent as a chief. c. A declaration that the title of Asofaotsegua of Ningo Kabiawe clan and the Head of Kabiawe Clan of Ningo does not exist and is alien to the Ningo Traditional Area. d. Perpetual injunction restraining the Respondent from holding himself as the Asafoatsegua Oman of Ningo Kabiawe Clan, and Head of the Kabiawe Clan of Ningo. The Judicial Committee’s decision of 21st August, 2020 is attached as Exhibit “A” which stated among other things as follows: - “We declare that the Respondent, Stephen Tetteh Oman, has not been installed as the Asafoatse of the Bantama-Kabiawe Clan. Relief (b) of the petition is granted. Having determined that the Respondent is not a chief having not been enstooled as the Asafoatse of the Bantama-Kabiawe Clan, he cannot hold himself as such. We also grant relief (d) of the Petitioner’s petition i.e. perpetual injunction restraining the Respondent from holding himself as Asafoatsegua Oman V. of Ningo Kabiawe and Head of Ningo Kabiawe.” It is this decision that the Respondent has purportedly disobeyed which triggered this instant application. The Applicant alleged that on 4th January, 2022 the Applicant held himself up as the Asafoatsengua Oman V of Ningo Kabiawe and head of the Kabiawe Page 2 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN Clan for performing rights not within his purview as Asafoatse and attached a video recording of the said ceremony. The Respondent’s case is that he was denied a hearing because the Judicial Committee refused to allow his lawyers to participate in the proceedings and filed two applications before the Tema High Court for Judicial Review by way of the mandamus to compel Ningo Traditional Council to admit him to the Council and also initiate moves to have his name entered into the register of the National Register of Chiefs. The second application was for Certiorari to quash the decision of the Judicial Committee of the Ningo Traditional Council. On 10th February, 2021 the High Court, Tema made an order compelling the Council to send the Respondent’s name for registration to the National House of Chiefs and attached Exhibit “AO3”. Again on 22nd February, 2022 the High Court Tema differently constituted also set aside the ruling of the Council dated 21st August, 2020 in which the Court stated thus:- “The ruling of the Judicial Committee of the Ningo Traditional Council dated 21st August, 2020 is accordingly set aside (quashed).” According to the Respondent the Judicial Committee of Ningo Traditional Council had notice of the pendency of his suit before the High for an order to compel the Ningo Traditional Council to forward his Chieftaincy Declaration forms to the National House of Chiefs for gazetting and yet the Council proceeded to make a determination in the said matter before it. It is the Respondents submissions that the said application is an automatic stay of the said judgment of the Judicial Committee. According to the Respondent the Mandamus application having been granted affirmed his position. The Respondent finally denied being in contempt and stated that his nomination, selection and enstoolment had not been annulled by any Competent Court or Traditional Council. That he did not install a Makralo singlehandedly and it was the said Makralo who swore an oath of allegiance to him and vice-versa. Page 3 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN ANALYSIS The Applicant’s application has been brought under Order 50 Rule 1 of the High Court Civil Procedure Rules, 2004 (C. I. 47). Contempt is quasi-criminal and Section 13 (1) of the Evidence Act, (NCRD 323) provides that “in any civil or criminal action the burden of proof as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”. In Kangah vrs. Kyereh & Ors. [1979] GLR 458, the Court held that to obtain a committal order for contempt, the applicant must strictly prove beyond all reasonable doubt that the respondents had willfully disobeyed and violated the court’s order. The above position was re-emphasized by Taylor J. in Akele vrs. Coffie and Another and Akele vrs. Okine and Another (Consolidated) [1979] GLR 84, where the court held that in order to establish contempt of court even when it was not criminal contempt but civil contempt, there must be proof beyond reasonable doubt that a contempt of Court had indeed been committed. Acquah JSC, in Republic vrs. Numapau and Ors; Ex parte Ameyaw II [1999-2000] 1 GLR 283 at pages 306 & 307 gave a good rendition on the different classes of contemptuous acts. He stated as follows: “Contempt of court may be classified either as direct and indirect or as civil and criminal. Direct contempts are those committed in the immediate view and presence of the court (such as insulting language or acts of violence) or so near the presence of the court as to obstruct or interrupt the due and orderly course of proceedings. Indirect (or constructive) contempt are those which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term is chiefly used with reference to the failure or refusal of a party to obey a lawful order, injunction, or decree of the court laying upon him a duty of action or forbearance. Civil contempts are those quasi-contempts 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.” Page 4 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN Contempt of Court was defined by the Supreme Court in Republic vrs. High Court, Ex- parte Laryea Mensah [1998-99] SCGLR at page 368: “By definition, a person commits contempt and may be committed to prison for willfully disobeying an order of court requiring him to do any act than the payment of money or abstain from doing some act; and the order sought to be enforced should be unambiguous and must be clearly understood by the parties concerned.” For the offence of contempt, it must be shown that the contemnor failed to comply with the order or judgment and that his disobedience was willful. Disobedience which was not found to be willful cannot be punished. See the cases of The Republic vrs. Boateng & Oduro; Ex Parte Agyenim Boateng [2009] SCGLR 154; The Republic vrs. Acquaye & Anor Abor Yamoah II Ex parte Essel [2009] SCGLR 749. Looking at the depositions of both parties before the Court, and the principles laid down in cases of breach of existing order like The Republic vrs. Sito I, Ex-parte Fordjour [2001- 2002] SCGLR 322 among others, this Court must be guided by the following:- 1. Whether there was an order restraining the Respondent from performing the acts complained of. 2. Whether the Respondent knew precisely what he is expected to do or refrain from doing. 3. Whether he failed to comply with same and the disobedience was willful. From Exhibit “A,” being the decision of the Judicial Committee, it is not in doubt that there was an order directed at the Respondent restraining him from holding himself as Asafoatsegua Oman V. of Ningo Kabiawe and Head of Ningo Kabiawe. According to the Respondent he was not given the opportunity to be heard at those proceedings and averred in paragraphs 8 and 9 of affidavit in opposition as follows:- Page 5 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN “8. That I was denied hearing because the panel denied my lawyers the opportunity to represent me with the excuse that in the Traditional Council lawyers are not allowed to represent parties since they deal with customary matters. 9. That even though I made the panel aware that the High Court Tema was hearing my application for Mandamus to compel the Traditional Council to submit my chieftaincy Declaration form to the Regional House of Chiefs for onward transmission to the National House of Chiefs so they should stay proceedings they refused and went ahead to hear the matter in my absence.” The Respondent also obtained from the High Court an order on 10th February, 2021 contained in his Exhibit “AO3” and I will reproduce the relevant parts:- “I therefore find as a fact that the stool in contention is Asafoatse of Bantama-Kabiawe and not Asafoatsengua. The processes filed seem to lay credence to the fact that the Applicant had been installed as Asafoatse of Kabiawe Bantama after the death of Asafoatse Oman IV. Per Exhibit E, the five gates constituting the Bantama Kabiawe clan had signed Exhibit E in which the signatures had urged on the respondent to register the applicant and the Asafoatse. This document seems to support the applicant’s installment as depicted in Exhibit A and B series. It is in this respect that I agree with the applicant that the five clans have so appointed him and installed him into the said office cannot resile from it and appoint another person. The applicant’s appointment is as of 26th March 2013 had become consummated. It is in that regard that the Regional Committee of the Greater Accra Regional House of Chiefs rejected the CD forms from Francis Nartey Blemano and directed same back to the NTC… Having read the processes before me and upon the reading of the full effect of the submissions by both Counsel, I have formed the view that mandamus lie to compel the respondent and the interested party to admit the applicant into the NTC and also forward his name for onward registration to the NHC.” Page 6 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN Even though the facts which has triggered this application can be said to be matters affecting chieftaincy, by the decision of the Supreme Court in the case of The Republic vrs. Conduah; Exparte Aaba (substituted by) Asmah [2013-2014]2 SCGLR 1032, this Court is clothed with jurisdiction to determine this contempt application. See also Justice S. A Brobbey’s book the Law of Chieftaincy in Ghana, 2008 at page 473 where he states as follows: “The order that can give rise to contempt proceedings should be one from a court or tribunal with judicial or adjudicatory powers. The courts are those mentioned in article 126 of the 1992 Constitution and the Courts Act (Amendment) Act, 2002 (Act 620). The tribunals are the judicial committees of the traditional councils, regional houses of chiefs and National house of chiefs.” This court only has to make a determination whether there is an order which has been breached which is known to the Respondent and he has willfully done so. The Respondent submitted that his application for judicial review constituted an automatic stay of the orders of the Traditional Council and therefore invited the Court to hold this view. Section 34 (1) of the Chieftaincy Act, 2008, Act 759 states:- (1) “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 consequentially unless the appellate tribunal otherwise directs. (2) Subject to section 62, an appeal does not operate as stay of execution.” I therefore disagree with this submission as it is an appeal to the National House or Regional House that could operate as a stay of execution and not an application for Judicial Review. An order is right until same is set aside and until set aside it ought to be obeyed. See Republic vrs. High Court, Ex parte Afoda [2001-2002] SCGLR 768. Page 7 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN There is obviously a decision of the Judicial Council directed at the Respondent as contained in the judgment dated 21st August, 2020 and from these pieces of evidence stated above the Respondent had knowledge of the proceedings before the Council which led to the filings of his applications before the High Court. I am therefore unable to agree with the position of the Respondent that the application is unfounded merely because entry of the decision of the judgment of the Judicial Council was not served on the Respondent. What I find problematic with the application is the fact that there are subsequent orders by the High Court which rather contradict the orders of the Traditional Committee. This makes it imperative to determine whether the impugned act took place before the High Court decisions or after the High Court decisions. The Respondent in his defence argued that whiles the matter was pending before the judicial committee, he filed a mandamus application at the High Court, Tema. The mandamus application was granted on the 10th February, 2021 as contained in Exhibit AO3 excerpts of which had been quoted above. In essence, when the Ningo Traditional Council’s (NTC) position is that the Respondent is not a chief and should not hold himself up as such, the High Court, Tema on the other hand is giving the Respondent recognition as a chief through its findings and the subsequent award of mandamus to have the Chieftaincy Declaration forms submitted to the National House of Chiefs (NHC) and an order quashing the Council’s orders. From the evidence before me, the impugned conduct of the Respondent in relation to the Mankralo swearing of oath to him took place after the 10th February, 2021. If that is correct then there was no disrespect shown to the Judicial Council. The orders of the judge remain valid unless same is set aside. CONCLUSION Since the burden required is that of proof beyond reasonable doubt, Applicant’s case must accord with all the three elements of contempt outlined above. Even if there was an apparent disrespect for the Judicial Council Orders, it is difficult to hold that the Page 8 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN disobedience was willful in view of the High Court proceedings and the outcome, which contradicted the decision of the Judicial Council. In light of the above, it will be arduous to come to the conclusion that the disobedience of the order of the NTC by the Respondent was willful and therefore unable to grant the Applicant’s prayer. The application therefore fails. I will make no order as to costs (SGD.) SHEILA MINTA, J. JUSTICE OF THE HIGH COURT REPRESENTATIONS: PARTIES: APPLICANT REPRESENTED BY ISAIAH OWIREKU BLEMANO RESPONDENT – PRESENT COUNSEL: BERNARD AGORTEY, ESQ., WITH ERNEST HARDI NATOMAH-SILAS, ESQ., FOR APPLICANT – PRESENT DAVID BONDORIN, ESQ., HOLDING BRIEF FOR ERIC ASUMAN-ADU, ESQ., FOR RESPONDENT – PRESENT Page 9 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN AUTHORITIES: 1. 2. KANGAH VRS. KYEREH & ORS. [1979] GLR 458 AKELE VRS. COFFIE AND ANOTHER AND AKELE VRS. OKINE AND ANOTHER (CONSOLIDATED) [1979] GLR 84 3. REPUBLIC VRS. NUMAPAU AND ORS; EX PARTE AMEYAW II [1999-2000] 1 GLR 283 AT PAGES 306 & 307 REPUBLIC VRS. HIGH COURT, EX-PARTE LARYEA MENSAH [1998-99] SCGLR AT PAGE 368 5. THE REPUBLIC VRS. BOATENG & ODURO; EX PARTE AGYENIM BOATENG [2009] SCGLR 154 6. THE REPUBLIC VRS. ACQUAYE & ANOR ABOR YAMOAH II EX PARTE ESSEL [2009] SCGLR 749 7. THE REPUBLIC VRS. SITO I, EX-PARTE FORDJOUR [2001-2002] SCGLR 322 8. THE REPUBLIC VRS. CONDUAH; EXPARTE AABA (SUBSTITUTED BY) ASMAH [2013-2014]2 SCGLR 1032 9. REPUBLIC VRS. HIGH COURT, EX PARTE AFODA [2001-2002] SCGLR 768 AND EX-PARTE DUFFOUR 10. SECTION 13 (1) OF THE EVIDENCE ACT, (NCRD 323) 11. (LAW OF CHIEFTAINCY IN GHANA) BY JUSTICE S. A. BROBBEY Page 10 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN 12. SECTION 34 (1) OF THE CHIEFTAINCY ACT, 2008, ACT 759 Page 11 | 11 SUIT NO. CR/0262/2022 – THE REPUBLIC VS. STEPHEN TETTEH OMAN