REPUBLIC VRS. NII ARMAH KWAFIO II AND ANOTHER (CR/0764/2021) [2023] GHAHC 623 (4 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON MONDAY, 4TH DAY OF DECEMBER, 2023 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT IN THE MATTER OF AN APPLICATION FOR CONTEMPT OF COURT SUIT NO.: CR/0764/2021 THE REPUBLIC VRS. 1. NII ARMAH KWAFIO II 2. MERCY ASANTE RESPONDENTS EX-PARTE: 1. NII KOJO DANSO II 2. NII BOSOMTWI OKWANKRA I 3. NII ASHIFLA OKUDZEMAN I APPLICANTS ========================================================================== RULING ON CONTEMPT ========================================================================== This is an application for Committal for Contempt of the Respondents filed on 2nd September, 2022 and subsequently amended on 13th February, 2023 discontinuing the Page 1 of 14 action against the 3rd Respondent, the Traditional council. The application which was mounted under Order 50 of C. I. 47, and was accompanied by a 29-paragraph Affidavit in Support and Supplementary Affidavits in Support filed on the 10th October 2022, was deposed to by the 1st Applicant for himself and on behalf of the other Applicants. The grounds of this application are that, upon the death of the past Acting President, Nii Ngleshie Addy IV, the position of the Acting President became vacant as a result of which a meeting of all the members of the Ngleshie Traditional Council was organized to hold an election on the 6th of July 2021. The case of the Applicants is that the said election was held in clear disregard and breach of the required procedure given by the Chieftaincy Act, 2008 (Act 759). The Applicants deposed that through the said election, a new Acting President in the person of Nii Armah Kwafio, who happens to be the 1st Respondent herein was elected by vote which was a patent procedural error. According to the Applicants, following the said election of the 1st Respondent as the Acting President of the Ngleshie Traditional Council, a motion on Notice for Judicial Review by way of certiorari was filed on the 14th September, 2021 by one, Nii Aryequaye IV, a member of the Traditional Council against the Ngleshie Alata Traditional Council and the 1st Respondent herein. That on the 13th May, 2022, this Honourable Court then presided over by Her Ladyship Justice Elfreda Amy Dankyi (Mrs.) in her ruling quashed the election of the 1st Respondent on the basis that the procedure used for his appointment as the Acting President was wrong. A copy of the said ruling was attached as exhibit “KD1”. It is the case of the Applicants that per the effect of the said ruling, the position of the Acting President of the Ngleshie Alata Traditional Council was declared vacant and the 1st Respondent can no longer continue to hold himself up as the Acting President of the Ngleshie Alata Traditional Council. Page 2 of 14 The Applicants stated that following the ruling of the Court, there was the need for the 2nd Respondent to take the necessary steps for a meeting of the members to be called in order to appoint a new Acting President for the Ngleshie Alata Traditional Council in accordance with the laid down procedure given by the Chieftaincy Act, 2008 (Act 759). The Applicants further stated that the 1st Respondent in gross disregard and disrespect to the orders of the Honourable Court, continues to conduct himself and occupy the position and office of the Acting President of the Ngleshie Alata Traditional Council in gross disregard to the Ruling of the Honourable Court declaring his election null and void (emphasis mine). Again, the 1st Respondent in gross disregard to the orders of the Honourable Court continues to hold himself up as the Acting President, issues and signs documents in the capacity of the Acting President of the Ngleshie Alata Traditional Council. Copies of documents signed by the 1st Respondent were attached and marked as exhibits KD 2 (a, b, and c). The Applicants deposed that even after the said ruling, the 1st Respondent continues to file processes in Court in the capacity as the Acting President of the Ngleshie Alata Traditional Council and this includes giving orders or letters to be issued and the filing of an injunction application on the 4th July 2022 which was subsequently granted on the 26th October, 2022. Copies of the said letter and order of injunction were tendered in evidence as exhibit 3 (a and b). The Applicants further deposed that by a letter dated 21st June, 2022, the Registrar of the Greater Accra Regional House of Chiefs under the President of the Regional House of Chiefs, issued a letter to the 2nd Respondent, notifying her of the said ruling by this Honourable Court quashing the election of the 1st Respondent and therefore requiring her to take the necessary steps to appoint a new Acting President of the Ngleshie Alata Traditional Council. A copy of the said letter was tendered in evidence as exhibit “KD 4”. According to the Applicants, the 2nd Respondent being the one in charge of the Page 3 of 14 administrative functions of the Ngleshie Alata Traditional Council and having been notified of the said Court ruling and to give effect to it, on several occasions by the Applicants acknowledged the 1st Respondent as the Acting President of the Ngleshie Alata Traditional. Copies of notifications were attached to the application as exhibits “KD 5 (a, b and c)”. The Applicants deposed that the 2nd Respondent in gross disregard to the order of the Honourable Court continues to allow the 1st Respondent to occupy the office of the Acting President of the Ngleshie Alata Traditional Council and the 2nd Respondent again continues to work with the 1st Respondent in the capacity as the Acting President. The Applicants further deposed that there has not been any Stay of Execution filed by the 1st Respondent for which reason, they say the conduct of the Respondents show a complete disrespect and disregard for the authority of this Court which seriously interferes with and impedes the end of justice and therefore pray that the Respondents be convicted and punished and an order prohibiting the 1st Respondent from further holding himself up as the Acting President of the Ngleshie Traditional Council. The two (2) Respondents have fiercely resisted the application and each of them has accordingly filed an Affidavit in Opposition wherein they each denied the allegations leveled against them and indicated that they have not in any way acted in gross disregard of any orders of the High Court. The 1st and 2nd Respondents’ Affidavits in Opposition were filed on 20th and 19th September, 2022 respectively. By their denial of any disregard for any order/ruling of the Court, the onus is now on the Applicants to prove the guilt of the Respondents beyond reasonable doubt. THE LAW ON CONTEMPT Page 4 of 14 The basis of the law of contempt in Ghana is both constitutional and statutory. The power to punish for contempt as a common law offence has been saved by the Constitution of Ghana and reserved for the Superior Courts. See Article 19 (2) and 126 (2) of the 1992 Constitution; Section 36 of the Courts Act, 1993 (Act 459) as amended by the Courts (Amendment) Act, 2002 (Act 620). What will constitute contempt? Merriam – Webster’s Dictionary of Law defines Contempt of Court as follows: “willful 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), Oswald defined same 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.” The Supreme Court defined Contempt of Court in THE REPUBLIC VS. HIGH COURT, EX-PARTE: LARYEA MENSAH (1998-99) SCGLR 360 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 other 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” Page 5 of 14 The main objective and purpose of the law on contempt is aptly stated by Lord Morris in the English case of ATTORNEY GENERAL VS. TIMES NEWSPAPERS LTD (1974) AC 273 AT 302, when he said: “in an ordered community Courts are established for the specific settlement of disputes and for the maintenance of law and order. In the general interest of the community it is imperative that the authority of the Courts should not be imperiled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity, it is because the very structure of ordered life is at risk if the recognized courts of the land are so flouted that their authority wanes and is supplanted” The jurisdiction of the Courts in Ghana in contempt proceedings is properly invoked under the Rules of Court by either by (i) Order 50 or (ii) Order 43 of C. I. 47 depending on the nature of the application. The procedure is, however, not exhaustive but for the purpose of this ruling the Court I would consider only the above two. Order 50 Rule (1) of C. I. 47 under which the Applicant mounted his application provides: (i) Order 50 rule 1: “1. (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 Page 6 of 14 Court. (3) The application shall be supported by an affidavit stating inter alia the grounds of the application”. (ii) Order 43 Rules (5) and (7) of C. I. 47 It is respectively stated in C. I. 47: Order 43 rule 5: “5. (1) Where (a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or within that time as extended or reduced under Order 80 rule 4; or (b) a person disobeys a judgment or order requiring the person to abstain from doing an act. The judgment or order may subject to these Rules be enforced by one or more of the following means (c) an order of committal against that person or, where that person is a body corporate, against any director or other officer. Order 43 rule 7 “7. (1) in this rule references to an order shall be construed as including references to a judgment. Page 7 of 14 (2) Subject to Orders 21 rule 14 (2) and 22 rule 6 (3) and sub rule (6) of this rule, an order shall not be enforced under rule 5 unless (a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and (b) in the case of an order requiring a person to do an act, the copy has been served before the expiration of the time within which the person was required to do the act. (4) There shall be indorsed on the copy of an order served under this rule a notice informing the person on whom the copy is served (a) in the case of service under sub rule (2), that if the person neglects to obey the order within the time specified in the order, or, if the order is to abstain from doing an act, that if the person disobeys the order, the person is liable to process of execution; and (5) With the copy of an order required to be served under this rule being an order that requires a person to do an act, there shall also be served a copy of any order made under Order 80 rule 4 extending or reducing the time for doing the act and, where the first-mentioned order is made under rule 5(3) or 6, a copy of the previous order requiring the act to be done, (6) Without prejudice to its powers under Order 7 rule 6, the Court may dispense with service of a copy of an order under this rule if it thinks it just to do so. From above authorities two situations by which a person may be liable for contempt are (i) disregarding an order of the court, or (ii) conducting oneself in a manner that interferes with the fair administration of the law/justice. Thus, where a person Page 8 of 14 disobeys an order of court, that person can be hauled before the court under Order 43 of C. I. 47 and where a person’s conduct constitutes interference with a fair administration of the law/justice, the application can be commenced under Order 50 of C. I. 47. WRITTEN SUBMISSION When the case came up for hearing on the 11th November, 2022, this Court differently constituted, ordered counsel for the parties to file their respective written submission of which by the date of this judgment, both counsel have complied. I must commend both counsel for the industry that went into their respective written submissions which have greatly assisted the Court in its judgment. BURDEN OF PROOF The burden of proof in the sense of the burden of establishing the guilt of a Respondent is always on the Applicant. To obtain a committal order for contempt, the Applicant must strictly prove beyond all reasonable doubt that the Respondent had willfully disobeyed and/or violated the court’s order and/or the conduct of the Respondent tends to bring the authority and the administration of the law into disrepute. In the absence of such evidence, the Respondent cannot be guilty of contempt of Court. Page 9 of 14 See REPUBLIC VS. S. K. BOATENG & ORS; EX-PARTE: AGYENIM BOATENG & ORS (2009) 25 MLRG 34; (2009) SCGLR 154, AGBLETA VS. THE REPUBLIC (1977) 1 GLR 445 C. A. In the Evidence Act, 1975 (NRCD 323), Section 15 (1), the same principle is put as follows: “unless and until it is shifted, the party claiming that a person is guilty of a crime or wrongdoing has the burden of persuasion on that issue.” STANDARD OF PROOF The Standard of Proof required in a criminal case is proof beyond reasonable doubt as amply stated in Section 11 (2) of the Evidence Act, 1975 (NRCD 323) as follows: “in a criminal action, the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.” Section 13 (1) of NRCD 323 on the other hand provides that: “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”. Thus, a quasi-criminal case cannot be proved on a balance of probabilities. Page 10 of 14 On the standard of proof required to ground contempt of Court, it was held in the REPUBLIC VS. S. K. BOATENG & ORS; EX-PARTE: AGYENIM BOATENG & ORS (2009) 25 MLRG 34 @ 39 as follows: “since contempt of Court was 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 considers the defences put upon by the respondents”. See also: IN RE EFFIDUASE STOOL AFFAIRS (NO. 2), REPUBLIC VS. NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX-PARTE AMEYAW II (NO. 2) (1998-99) SCGLR 639. ISSUE(S) FOR DETERMINATION After reading the application, the affidavits filed for and against the application as well as the written submissions filed by counsel for the parties, it is the considered view of the Court that the resolution of the following issue will help determine this application one way or the other: (i) Whether or not the Respondents have willfully disregarded any order/ruling of this Court by means of the 1st Respondent, assisted by the 2nd Respondent, holding himself up as the Acting President of the Ngleshie Alata Traditional Council. As stated above, it is the case of the Applicants that notwithstanding the ruling of Her Ladyship Justice Elfreda Amy Dankyi (Mrs.) dated 13th May, 2022, the 1st Respondent Page 11 of 14 who was the interested party in that suit from which the said 13th May, 2022 ruling emanated, has been holding himself out as the Acting President of the Ngleshie Alata Traditional Council and the 2nd Respondent has either assisted the 1st Respondent in that capacity and/or has failed to take the necessary steps to appoint a new Acting President for the Ngleshie Alata Traditional Council. Now the question begging for answers is: What did the Court say in respect of which the Applicants are accusing the Respondents of having disregarded? The answer can be found at pages 17 and 18 of the said ruling reproduced hereunder as follows: “… I hold and find that an order of certiorari will lie to quash the election held by the Respondent as Respondent acted in excess of its jurisdiction and contrary to Section 15(3) of the Chieftaincy Act (Act 759). The chief next in seniority should be the acting President in accordance with the law and in the absence of a substantive President. The Court observes that both Applicant and the Interested Party were appointed Divisional Chiefs on the same date per the extract from the National House of Chiefs and so both are at par in terms of seniority. Application for certiorari is granted to the extent that the procedure adopted by the Respondent is electing the Interested Party is wrong…” It is the considered opinion of this Court that the ruling quashing the election of the 1st Respondent is akin to a declaratory relief. The ruling does not require of the Respondents to do anything. It merely declared that the election was wrong in accordance with law for which reason same was quashed. There was no requirement for the Respondents to do or abstain from doing any act or thing and that is the point to be made. Page 12 of 14 In the case of REPUBLIC VS. DUFFOUR; EX-PARTE: ASARE (2007-2008) SCGLR 394 @ 395, HOLDING (2), as follows: “the contempt complained by the Applicant must relate to enforceable orders such as an order for recovery of possession of land made in favour of a successful party in a land suit and not to declaratory reliefs. Such declaratory reliefs were not enforceable in that they merely declared the rights of the parties without requiring them to do anything … Since in the instant case, the application for committal for contempt by the Respondent was based in part on an alleged disobedience to declaratory reliefs, which had been made by the Supreme Court on an appeal from the judgment of the Court of Appeal, no contempt was made out…” Now, applying the above authority to facts of this application and from the evidence placed before me and having duly considered the law on contempt and having read the written submissions filed by the learned Counsel for the parties, I am of the considered view that the Applicants have not been able to prove beyond reasonable doubt that the Respondents are guilty of contempt of court. Accordingly, the application is dismissed and the Respondents are acquitted and discharged. Cost has been waived by the Applicant. There is no order as to costs. (SGD) JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) Page 13 of 14 COUNSEL: RICHMOND ADODOADJI BEING LED BY ISRAEL ACKAHA FOR THE 2ND RESPONDENT. ABDUL-GAFAR ABLORH ABORDO FOR THE 1ST RESPONDENT. CHRISTIAN AKWESI BUAME FOR THE APPLICANTS. Page 14 of 14