Republic Vrs. Howusu (E12/48/2022) [2023] GHAHC 664 (15 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION CORAM: CHARITY A. ASEM (MRS.) J. SUIT NO.: E12/48/2022 DATE: 15TH DEC., 2023 THE REPUBLIC VRS. 1. STEPHEN KOFI HOWUSU 2. FIATOR EMIL ANORSIGBE RESPONDENTS 3. TOGBE OPEKU VI EX-PARTE: 1. EMIL AGBETETI 2. FELIX KOSI DZEBEY 3. JOHN KOSI ZU APPLICANTS 4. DIKRO ADERE ABADA VI Parties: - 1st, 3rd and 4th Applicants - present. 2nd applicant – absent. Respondents – present. Lawyers: Emile Atsu Agbakpe for the Applicants – Present Nii Adjei Blebo for Achie Martin Danso Jnr. for the Respondents – Present JUDGMENT “The courts must not only enjoy the respect and confidence of the people among whom they operate, but also must have the means to protect that respect and confidence in order to maintain their authority. For this reason, any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere in any way with the cause of justice becomes an offence not only against the courts but against the entire community; which the courts serve. Such conduct constitutes the offence of contempt of court. And the courts are vested with the powers of dealing with it in a manner that is almost arbitrary. For this reason, the power is rarely invoked and only when the dignity, respect and authority of the courts are seriously threatened. It has been said that these powers are given to the courts (and the judges) to keep the course of justice free; power of great importance to society for by the exercise of them, law and order prevail; those who are “interested in wrong are shown that the law is irresistible”. Per Akuffo Addo C J in Republic V. Liberty Press Ltd. (1968) GLR 123 at page 139. Recently this diction was referred to by the Supreme Court in the case of Rep. V. High Court (Land Division) Accra (respondent) Ex-parte Kennedy Ohene Agyapong (Applicant) Susan Bandoh (Interested Party) (2020) DLSC 9895 at page 18, through His Lordship Kulendi JSC. By a motion on notice, filed on the 23/02/2022, the applicants numbering four (4), seek an order of this court to commit the three (3) respondents herein for contempt of court. This is in respect of a pending petition filed before the Volta Reginal House of Chiefs on 26/01/2022, as Suit No. VRP/2/2022, Exhibit ‘A’ attached. His reliefs are captured in paragraph 33 (a-g). The applicant contend that the respondents were served with the Petition but have not responded to same. That the applicants on the 26/01/2022 in Suit No. VRP/2/2022 filed a Motion on Notice for Qua Timet Interim Injunction to restrain the respondent, their assigns, agents, servants or any other Chief or person for that matter in the Akpini Traditional Area from meeting on Thursday the 27/01/2022 or, any other day thereafter for commencing processes towards installing any person as the paramount chief of the Akpini Traditional Arear on the Dagadu Stool. The applicant per the instant application contends that the respondents though served with the above mentioned motion, disobeyed hence, the invitation to the court to commit the respondents for contempt of court. The court become satisfied that the respondents have been served with the instant application thus, complying with Order 50 Rule1(4) of the High Court Civil Procedure Rules of 2004 CI 47, which makes personal service on an alleged contemnor mandatory, in exception to sub-rule (5) thereof. The above application suffered so many shocks’ when the respondent kept the applicants and their counsel on their toes for alleged noncompliance with the rules of contempt proceedings and were visited with many applications. This is understandable because the issue of contempt of court, and its attendant consequences provides for strict compliance with the rules; for instance, the issue of personal service. But after the trouble waters settled, the respondents have caused to be filed their separate individual defences as shown in their affidavit in opposition, filed on the 12/10/2023 with no registered Exhibits. Therefore, the court’s jurisdiction under the rules of natural justice, has been properly invoked to determine the merits of the contempt application. CASE OF THE APPLICANTS From the affidavit evidence attached to the motion presently under consideration, one Emil Agbeteti from Kpando Gabi is the 1st applicant said has the authority of the other applicants to depose to the affidavit on their joint behalf. As can be glanced from the applicants’ affidavits, they contend as follows; 1) They caused a petition to be filed at the Judicial Committee of the Volta Regional House of Chiefs for the reliefs endorsed. Please see Exhibit EA1. 2) They subsequently filed a motion for Quia Timet Injunction to restrain the respondents and all persons claiming through them in the Akpini Traditional Area from meeting either on Thursday the 27/01/2022 or any other day thereafter for commencing processes forwards installing any person as the Paramount chief of the Akpini Traditional Area on the Dagadu Stool, Exhibit EA2 attached. 3) It is their case that a search conducted at the registry of the judicial committee of the Volta Regional House of Chief revealed that the said petition and the motion for Quia Timet Injunction was duly served on the respondents on 27/01/2022. Please Exhibit EA3 attached. 4) That despite the service of the petition and the motion on notice and the Interim Injection application on the respondents, respondents have failed or refused to file any processes in response to the matters raised as a clear shown in Exhibit EA3. 5) They contend further that, despite the respondent failure or refusal to file any response to the petition, respondents have caused a public announcement to be made to undertake a week long special Traditional and Customary Rites within the Akpini Traditional Area. Please see Exhibit EA4. 6) That the special Customary event is aimed at the installation of the paramount chief of Akpini Traditional Area in spite of the pending motion for injunction. 7) That they have been advised and they verily believe same to be true that the conduct of the respondents’ amount to gross disrespect to the judicial committee of the Volta Regional House of Chiefs and processes emanating therefrom. That by their conduct the respondents have no respect for the administration of Justice hence their deliberate refusal to respect the judicial Committee and its processes. 8) They prayed that the respondents be severely punished for their willful contemptuous conduct, well calculated to ridicule the Judicial Committee of the Volta Regional House of Chief and the administration of Justice as a whole. 9) They ought to be punished having brought the authority and administration of justice into disrepute by their conduct they ought to be incarcerated by committing them to prison. Applicants Exhibit EA1 – The petition of the applicants to the Volta Regional House of Chiefs filed on 26/01/2022 Suit No. VRP.2/2022. Exhibit EA2 - Is the Interim Injunction application filed on the same date – 26/01/2022 Exhibit EA3 – Is a search conducted by the applicants herein at the registry of the Volta Region House of Chiefs on the 23/02/2022. Exhibit EA4 – Is a document entitled Notice of Public Announcement generated on a letter head of Akpini Traditional Area. The document was signed by one TA Akwensi who described himself as Secretary, Akpini Traditional Area. Contempt proceedings are quasi criminal in nature. The degree of proof is proof beyond reasonable doubt. The respondents have denied the charges levelled against them, which in law amounts to a plea of not guilty as can be gleaned from the various affidavit in oppositions filed. They were emphatic that the applicants have failed woefully to pint to anything specific they have done to be in contempt of the court. Once they denied the charge, the applicants herein bare the singular onus of proof of the charge beyond reasonable doubt.ht In the case of Connect Production UK Ltd. V. Houllet Plastics Ltd (1971) 1 AER 1141 CA. it was decided 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 criminal charges have always been applied to such proceedings. It must be proved with the same degree of satisfaction as in a criminal charge.” See also Aleke V Coltie (1928) GLR 84. On the burden of proof, the Court held in the case of Kargah Vs. Kyere & Ors. (1979) GLR 458 that; “To obtain a committal order for contempt, the applicant must strictly prove beyond all reasonable doubt that the respondent had willfully disobeyed and violated the court orders.” WHAT IS CONTEMPT OF COURT Contempt is a substantive action on its own. On what constitute contempt of court, Oswald on contempt of court in his book 3rd edition said, to speak, generally, “contempt of court may be said to be constituted by any conduct that tend to bring the authority and administration of the law into disrepute or disregard, or to interfere with or prejudice parties’ litigants or their witness during the litigation”. It was further explained in the case of Rep. V. Nana Osei Bonsu II Mamponghene & 2 Ors. (2008) 14 MLRG 1 of 13 wholly 14; “To be guilty of contempt of court or contempt of the Reginal House of Chiefs, there must be conducts, actions or omissions on the part of the persons charged with contempt which turns to undermine the authority of the court or tribunal by interfering with the process pending in that court or tribunal”. Since the positive determination of the outcome of a contempt application has dare consequences on the respondent charged with contempt, the law demand strict prove on guided principles. The Supreme Court has laid down the essential elements of contempt of court, in the case of Republic. V. Sito 1 Ex-parte Forjour (2001 – 2002) SCGLR 323, that: (1) There must be a judgment or order of the court (2) It must be shown that the contemnor is aware/knows what precisely he is in expected to do or abstain from doing; (3) It must be shown that though he had knowledge, he failed to comply with the judgment or order and the disobedience was willful. However, the court can commit for contempt in absence of a court judgment or order in pending litigation. And the often cited case is; Republic. V. Mofftat & Anor. Exparte Allottey (1971) 2 GLR 391. Abban J (as he then was) held that, “Any conduct which tends to bring the authority and administration of the law into disrepute or to interfere with any pending litigation is contempt of court. Once the respondent become aware of the pendency of the motion before the High Court, any conduct on their part which was likely to prejudice a fair hearing of that motion or interference with the due administration of justice amounted to contempt of court. You may see also the case of; REPUBLIC V. BANK OF GHANA & 5 OTHERS EX PARTE BENJAMIN DUFFOUR (J4/34/2018 (2018) GHASC 37. To succeed in the instant application therefore, the applicant must adduce satisfactory cogent and credible evidence to prove beyond reasonable doubt that the alleged contemnors are aware of the pending petition and motion or interlocutory injunction were served. It is only when this huddle is crossed, the legal threshold that, the court will be clothed with jurisdiction to resolves the willful disobedience of by the respondents. As a general rule a court has no jurisdiction to proceed against a person who has no knowledge of ts processes. The applicant must establish a prima facie case against the respondents. Republic V. Numapau; Ex-parte Ameyaw II and Ors. (1999 – 2000) GLR 222 – 323. Please see Section 13(1) of the Evidence Act. Consequently, the two issues in my assessment that should engage the thought of this court for consideration presently are; (a) Whether or not the applicant has made a prima facie case against the respondents. (b) Whether the respondent has willfully disobeyed the Regional House of Chiefs and so must be punished. As stated earlier, the respondents have denied the case of the applicants. Though the counsel for respondent has raised the issue of capacity of the applicants to institute the present action, it is primary that the capacity of an individual to sue cannot be determined by an affidavit evidence. Counsel for the respondent had all the opportunity during the pendency of this trial to raise the issue of capacity to sue for the court to pronounce on it but did not. With all due deference to counsel for respondent, I have not been challenged in any way from considering the merits of this case. I proceed to deal with issues set. Observably, the applicants petition together with the interim injunction application were filed on the same day 26/01/2022 at the registry of the Volta Regional House of Chiefs. From the processes before this court I do not get the impression that both the Petition and the Motion for Interim Injunction were served. In the instant proceedings, whether or not respondents are guilty of contempt of the regional house of chief will depend primarily on what is proved per Exhibit EA3, the search conducted by the applicants’ counsel on 23/02/2022. I deem it expedient to reproduce Exhibit EA3, the questions asked in the search, and how it was answered. 1) Whether or not the petition has been served on the respondents? – Yes. If served, when? – 27/01/2022 2) Whether or not the respondents have entered appearance to the petition/ – No. if so, when? N/A 3) Whether or not the respondents have filed any response to the petition? No. if so, when? N/A There are three (3) respondent charged for contempt of court presently based on the above exhibit. It is glaring from the search reproduced above that it does not state who exactly was served with the petition. The answer produced in question one is vague and remote in my candid view. Quite apart from that there was no question as to whether or not the motion for interim injunction application to be heard on a none returnable date was served on any of the respondents. Now according to applicant though the respondents were aware of the pending of the Exhibit EA1, 2 and 3, they cause a public announcement to be made on the 18/02/2022, counsel supported his argument with evidence Exhibit EA4. When, I examined Exhibit EA4, the author of the said document being laid at the door step of respondents was signed by one named T A. Akwensi, who signed the document as secretary to Akpini Traditional Area. The said public announcement was placed by the kind courtesy of the Council of Chiefs and Queen mothers of Kpando. Clearly, the applicants have failed to show that the respondents authorize the said public notice and or respondents herein constitute the council of Chiefs & Queen mothers of Kpando Gabi. Applicant has also failed to prove that the 3 respondents were the conveners of the meetings that were allegedly held on 27/01/2022 to commence customary rites leading to the installation of a paramount chief on the Dagadu stool. Consequently, I hold the firm view that, the applicants have not demonstrated the needed and cogent proof that the respondents had knowledge of the pendency of the petition the interim injunction application as well as the convener of the meetings held, to enable the court to take further steps to determine whether a willful disobedience of the contents of applicants exhibits has been committed, in a manner that brings administration of justice into disregard or disrepute. Furthermore, Exhibit EA2 which sought to invoked the jurisdiction of the Reginal House of Chiefs has no return date upon which the respondents must respond to. I can only describe the Exhibit as incomplete court process that lay no legal burden on respondent to respond to. A person who makes an assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he would not discharge this burden unless he leads admissible and credible evidence from which that fact she asserts can properly and safely be inferred. The judicial authorities on the burden of prove are limitless, please see Prudential Bank Ltd v. Appiah Boateng (2019)143 GMJ page 175 CA. Zabram V. Segbedzi (1991) 2 GLR 221 C A. Majolegbe V. Larbi & Or. (1959) GLR page 190 S C, just to mention but a few. To my mind, the best proof of service of the petition on respondents would have been an affidavit evidence from the bailiff who claimed to have served the said processes on the respondents at Kpondo. He ought to be brought to testify on oath or better still a copy of the proof of service from the registry of the Reginal House of Chiefs, in an important matter such as this and be crossed examined, to nail the charge. Sadly, the applicant failed woefully so to take any such steps. The applicant has not discharge the burden of proof required by law as far as the evidence introduced in this matter is concerned. By that failure, the court’s jurisdiction to consider and determine the defence of the respondents has not arisen. The evidence is weak and thus carries no weight to move the hand of this court to convict the respondents for contempt of court. See again Ex-parte Ameyaw II No. 2 (supra). CONCLUSION Upon a careful consideration and evaluation of the affidavit evidence in support of the instant application and thorough scrutiny of Exhibits EA2, EA3 and EA4; the evidence fell short of the standard required of an applicant in a contempt of court litigation. I find that the essential requirement necessary to commit the respondents for contempt of court have not been clearly made out or established to the high standard required in proof of quasi criminal matter such as contempt of court. Accordingly, the application fails. I will discharge the three 3 respondents from the charge of contempt of court leveled against them. It is stated elsewhere that; “Application for contempt/certiorari and the prayer for its grant must be carefully thought of and taken seriously by practitioners. Litigants must not cause their lawyers to jump at issues that were more, trifle, in consequential, irrelevant or an important to push the court into delving into absurdity. The application fails and same is dismissed. The respondents are entitled to cost. GHC2,000.00 is assessed in favour each of the respondents herein. Case is dismissed. (SGD.) H/L, CHARITY A. ASEM (MRS.) J. (JUSTICE OF THE HIGH COURT) 12